State v. Hormann, A10-1872

• Decision Date: 19 October 2011
• Docket Number: A10-1872
• Parties: State of Minnesota, Respondent, v. Danny Lee Hormann, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent,

v.Danny Lee Hormann, Appellant.

A10-1872

STATE OF MINNESOTA IN COURT OF APPEALS

Filed October 19, 2011

Affirmed in part and reversed in part

Minge, Judge

Douglas County District Court

FileNo. 21-CR-10-656

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Chad Larson, Douglas County Attorney, Timothy S. Hochsprung, Assistant County

Attorney, Alexandria, Minnesota (for respondent)

Ted Sampsell-Jones, Special Assistant Public Defender, St. Paul, Minnesota (for

appellant)

Considered and decided by Hudson, Presiding Judge; Minge, Judge; and Ross, Judge.

SYLLABUS

A person with a presumptive marital-property interest and unfiled title interest in a motor vehicle may not be criminally prosecuted under Minn. Stat. § 626A.35, subd.1(2008) for installing a tracking device on that vehicle.

OPINION

MINGE, Judge

AppellantDanny Lee Hormann challenges his convictions of stalking his then-wife and installing a mobile tracking device on her car, arguing (1)the district court abused its discretion by admitting testimonial evidence of his misconduct during the marriage; (2)the district court erred by denying his motion for acquittal and submitting the tracking-device charge to the jury; and (3) the stalking statute is unconstitutionally vague.We affirm the evidentiary ruling and the conviction of stalking, reverse the tracking-device conviction, and do not reach the constitutional question.

FACTS

Appellant was charged with one count of stalking his then-wife, M.H., in violation of Minn. Stat. § 609.749, subd. 2(a)(2)(2008), and one count of using a tracking device on the vehicle driven by his wife in violation of Minn. Stat. § 626A.35, subd. 1.He pleaded not guilty, and the matter was set for a jury trial.

Prior to trial, appellant moved to exclude evidence of any prior bad acts.On the morning of trial, the prosecutor indicated that M.H. would testify about the general nature of her marriage to appellant, a January 18, 2010 incident of domestic abuse, and repeated occasions on which appellant had confronted her after locating her in places where he had no reason to know she would be.The prosecutor informed the court that this evidence was necessary to demonstrate that appellant knew that placing the tracking device on the car his wife was driving would cause her to feel frightened, which is one element of the stalking charge.The district court denied appellant's motion, ruling that both the generaltestimony about the marriage and the January 18 specific-incident testimony were admissible but cautioning the state that the testimony should be presented "without getting into a lot of specifics" and "delv[ing] into the prejudicial area where it would be cut off at some point by the Court."

The criminal complaint alleged that the stalking occurred "[o]n or about March 10, 2010."The record indicates that on March 10, 2010, M.H. had a mechanic inspect her car to look for a tracking device.The mechanic testified that he found a tracking device magnetically attached to the underside of the car.M.H. told police that she believed appellant had been monitoring her car's movements and that, in late 2009, appellant had unexpectedly located her in a lakeside cabin, entered the cabin, and physically attacked an acquaintance of M.H.'s.The complaint stated that the police determined that appellant had purchased the device and that the car was registered to M.H.

During the trial, when asked to describe her marriage to appellant, M.H. testified:

[The marriage] hasn't been good for 20 years. . . .[T]here was a lot of fighting. . . .[T]here was a lot of violence.[Appellant] gets very angry.He's very controlling.He controlled all the money. . . .Literally every door in the house had a hole in it or had been broken.There [were] holes in the wall.He drove his pickup through the back end of the garage because he was mad.I've had several bruises.I've been pushed up against the wall many times.I've been pushed, I've been shoved, I've been spit on, I've had beer poured on me. . . .[Appellant] didn't like me to have friends.He didn't like my family.

Appellant's counsel objected repeatedly to the general testimony but was sustained only once with respect to a nonresponsive answer.

M.H. also testified that, after she informed appellant in October 2008 that she intended to divorce him, appellant became obsessive about her whereabouts, acquaintances, and social life.She testified that appellant put spyware on her cell phone that allowed him to intercept her text messages and that he also seemed to know everything she was doing on the family computer.She said she became specifically concerned about a tracking device on her car because appellant always seemed to know where she had been after she used the car.

M.H. gave detailed additional testimony about four prior incidents.Three occurred in late 2009.In one, appellant demonstrated a knowledge of where she had been after she returned home; in the other two, he confronted her in locations (including a remote lakeside cabin she thought was unknown to appellant) without her having told him where she would be.On each occasion, M.H. had been using the car on which the tracking device was later found.M.H. also testified about the January 18, 2010, incident.It involved domestic violence and precipitated her moving out of the family home.She stated that after she moved out, appellant continued to send her text messages, commenting on where she had been and otherwise indicating that he was still monitoring her movements.The mechanic testified that the tracking device was activated when he found it.

At the close of evidence, appellant moved for an acquittal on the tracking-device charge, asserting that his marital interest in the car exempted him from prosecution.SeeMinn. Stat. § 626A.35, subd. 2a(2008)(providing that the prohibition does not apply when the owner has consented to the attachment of the tracking device).He also pointedout that M.H. signed the title to the car over to him prior to March 10, 2010, to facilitate its sale.The prosecution countered that the transfer was never completed by filing documents with the state Department of Public Safety.Appellant argued that the ownership of the vehicle was a question of law that should not be submitted to the jury.The district court denied the motion and submitted the ownership question to the jury, which found appellant guilty on both the stalking and the tracking-device counts.The district court sentenced appellant on the stalking conviction; it imposed no sentence on the tracking-device conviction.This appeal follows.

ISSUES

I.Did the district court abuse its discretion by admitting evidence of bad acts committed by appellant during his marriage to M.H.?

II.Did the district court err by denying appellant's motion for acquittal on the tracking-device charge?

III.Is the stalking statute unconstitutionally vague?

ANALYSIS

I.BAD ACTS EVIDENCE

Appellant challenges the district court's decision to admit M.H.'s (1) general testimony about her marriage to appellant; and (2) specific testimony about the four incidents that occurred in late 2009 and in January 2010.Appellant argues that, to the extent M.H.'s testimony describes alleged prior bad acts, it is character evidence under Minn. R. Evid. 404(b) and inadmissible because the state failed to comply with applicable procedural safeguards prior to introducing the evidence.

We will not reverse the district court's admission of evidence of other crimes or bad acts unless appellant can demonstrate both an abuse of discretion and that he was prejudiced by the erroneous admission.State v. Ness, 707 N.W.2d 676, 685(Minn.2006).If the district court has erred in admitting evidence, we must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.State v. Post, 512 N.W.2d 99, 102 n.2(Minn.1994).

The record reflects that the parties and the court reviewed four bases for admitting M.H.'s general and specific testimony about appellant's marriage to M.H.: as Spreiglevidence, under Minn. R. Evid 404(b); as res gestae (immediate-episode) evidence; as evidence of similar conduct against the victim of domestic abuse under Minn. Stat. § 634.20(2008); or as relationship evidence governed by Minnesota caselaw.We address each in turn.

A. Spreigl/404(b)Evidence

Evidence of prior bad acts generally "is not admissible to prove the character of a person in order to show action in conformity therewith."Minn. R. Evid. 404(b).This is also known as Spreiglevidence.State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169(1965).But Spreiglevidence may be admissible to prove other things, such as motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident, provided the state complies with various procedural safeguards.Minn. R. Evid. 404(b);Spreigl, 272 Minn. at 491, 139 N.W.2d at 169.

Appellant vigorously argues that the challenged evidence was not admissible as Spreiglevidence.We agree.Indeed, the record indicates that the state did not offer thetestimony concerning the marriage as Spreiglor rule 404(b) evidence.Rather, as we observe below, the testimony bore directly on the history of the existing relationship between appellant and M.H. and was relevant in demonstrating, as was the state's burden, that appellant had reason to know that attaching the tracking device to M.H.'s car would cause her to feel fearful.Such relationship evidence is not Spreiglevidence.SeeState v. Kanniainen, 367 N.W.2d 104, 106(Minn. App.1985)(rejectingSpreiglargument when evidence "bore directly on the history of the relationship existing between the two parties").Accordingly, the Spreiglanalysis is inapposite, and we turn to other bases for admission of the evidence.

B. Immediate-episode evidence

The state argues that the contested...