State v. Mullen

• Decision Date: 30 April 1998
• Docket Number: No. C5-96-2096,C5-96-2096
• Citation: 577 N.W.2d 505
• Parties: STATE of Minnesota, Respondent, v. Charles Elmer MULLEN, pet., Appellant.
• Court: Minnesota Supreme Court

Page 505

577 N.W.2d 505

STATE of Minnesota, Respondent, v. Charles Elmer MULLEN, pet., Appellant.

No. C5-96-2096.

Supreme Court of Minnesota.

April 30, 1998.

Syllabus by the Court

1. Minnesota Statutes § 609.749, subd. 5, does not require specific intent.

2. Appellant was not denied due process by the trial court allowing the jury to consider both April 1995 and March 1996 conduct to establish a pattern of harassing conduct.

3. The trial court erred in imposing separate sentences for the criminal damage to property and pattern of harassing conduct convictions.

4. The inclusion of the catch-all provision, Minn.Stat. § 609.749, subd. 2(7), in the jury instructions was harmless error.

Steven P. Russett, Asst. State Public Defender, St. Paul, for appellant.

Hubert H. Humphrey III, Atty. Gen., Robert A. Stanich, Asst. Atty. Gen., Alan L. Mitchell, St. Louis County Atty., for respondent.

Heard, considered, and decided by the court en banc.

OPINION

STRINGER, Justice.

Appellant Charles Elmer Mullen was originally charged in a three count complaint with first-degree burglary, fifth-degree assault, and providing a false name to a peace officer, all related to a fracas in the early morning of April 9, 1995 when appellant broke into his ex-girlfriend's apartment, ripped the phone out of the wall and struck her in the face several times. Trial was scheduled on these charges for April 2, 1996, but in the meantime, additional charges were filed against him for conduct in early March 1996 when he made repeated telephone calls to his ex-girlfriend, smashed in the window of her car, and made threats to her of physical injury. For this conduct, appellant was charged with third-degree criminal damage to property, first-degree tampering with a witness and engaging in a pattern of harassing conduct. The complaints were joined for trial and the jury returned a verdict of not guilty on the witness tampering charge, but guilty of fifth-degree assault, first-degree burglary, criminal damage to property, and pattern of harassing conduct. On appeal, the court of appeals concluded that appellant's sentence on the criminal damage to property conviction exceeded the statutory limits and remanded on that issue but affirmed the convictions on all other charges. We affirm in part and reverse in part.

Appellant dated Deborah Ellefson for almost two years prior to April 1995. On April 9, 1995, a few days after ending their relationship, appellant thought that Ellefson had left their regular bar with another man. Appellant went to Ellefson's apartment building and buzzed her on the security intercom, asking to be let in. Ellefson refused but apparently someone else let appellant in the building. When appellant knocked on Ellefson's door, she told him she would not let him in and did not want to speak with him that evening. He then threatened to break down the door if she did not let him in, and when she refused he kicked the door in breaking the lock. Ellefson reached for the telephone but appellant ripped it out of the wall, and Ellefson screamed for help. A report of a domestic disturbance was called in to 911 at 2:11 a.m. The police arrived and placed appellant in custody. Ellefson was crying and shaking and told the police that appellant had slapped her. ¹ The police officer at the scene testified that appellant initially denied but then admitted slapping Ellefson. When he was arrested appellant gave his brother's name and birthdate instead of his own. He was charged with first-degree burglary, Minn.Stat. § 609.582, subd. 1(a)(c) (1996), fifth-degree assault, Minn.Stat. § 609.224 (1996), and giving a false name to a peace officer, Minn.Stat. § 609.506, subd. 2 (1996), as a result of the April 9 incident. Trial was scheduled for April 2, 1996.

In the interim, Ellefson and appellant reconciled but the relationship ended again in January 1996. Ellefson testified that in the weeks before the April 2 trial date appellant repeatedly asked her to testify that she did not remember the events of April 9, 1995. He also threatened that she "would be sorry if he went to jail," "if he did any jail time over this, he would kill [her]" and she "would get what [she] deserves." On March 11, 1996, two weeks before appellant's scheduled trial date, Ellefson received four or five telephone calls late in the evening from appellant accusing her of turning his new girlfriend against him. Ellefson denied it and took the telephone off the hook. In the early morning hours of March 12 a neighbor pounded on Ellefson's door and told her that the back window of Ellefson's automobile had just been broken. Ellefson called 911 but before the police arrived she received another call from appellant telling her that she "wouldn't make it through next week."

Two of Ellefson's neighbors whose apartments face the parking lot testified as to what they saw on March 12, 1996. Amy Berg testified that she was awake and tending to her infant son when she heard a loud crash. She went to the window and saw a rusty truck pulling out of the parking lot. Terry Atkinson testified that she was standing in front of her window smoking a cigarette when she heard a crash. She looked up and saw a tall man jump into a blue truck covered with rust or primer spots and drive away up Bristol Street. Based on the neighbors' statements to the police on the night of the incident, a patrol car proceeded to 6011 Bristol Street where appellant was living at the time and a silver or light blue truck with rust and primer spots was located. The radiator was warm to the touch but no one responded to the police officers' knocking at the door of the house. The day after her car window was broken Ellefson received another telephone call from appellant offering to pay for replacement of the window and explaining that he "was really drunk" and "barely even remember[ed] doing it." A few days later appellant learned there was a warrant out for his arrest and he turned himself in.

In connection with the March 1996 incident, the St. Louis County Attorney charged appellant with stalking and a pattern of harassing conduct, Minn.Stat. § 609.749, subd. 1, subd. 2(1)(2)(3)(4)(5) with reference to subd. 5(a); first-degree tampering with a witness, Minn.Stat. § 609.498, subd. 1(a) (1996); and third-degree criminal damage to property, Minn.Stat. § 609.595, subd. 2(a) (1996). The trial court granted the state's motion for joinder of the April 1995 and March 1996 charges at one trial. The defense did not oppose the motion. Appellant pled guilty to the charge of giving a false name to a peace officer but went to trial on the other charges on May 22, 1996.

At trial, the state was required to prove the specific elements of burglary, assault, witness tampering, and criminal damage to property. As to pattern of harassment, the state was required to prove two levels of statutory violation. First, the state had to show that appellant committed two or more acts that constituted stalking under § 609.749, subd. 2, and second, the state had to show that those two or more acts occurred within a five year time frame, against the same victim, in a manner that would cause a reasonable person to feel terrorized or to fear bodily harm and actually caused that reaction in the victim. ²

Appellant testified in his defense at trial and described his and Ellefson's conduct as "little kid's games," claiming that both he and Ellefson telephoned each other and argued, or telephoned each other and hung up. Although he admitted kicking in her door in April 1995, he denied hitting her. He also denied making threats to her about her testifying but admitted that he broke her car window. He testified that he broke the car window because "[s]he was harassing me, and I had enough." Appellant characterized his and Ellefson's relationship as mutual harassment, stating that "we pretty much harassed each other * * * throughout the two years of going out with each other."

Several issues were raised at trial regarding the phrasing and content of the jury instructions. As to the pattern of harassment charge, defense counsel argued that the words "oppressed" and "persecuted" should be removed from the jury instruction for stalking because they "are social terms, not really legal terms." See 10A Minn. Dist. Judges Ass'n, Minnesota Practice, CRIMJIG 24.57 (3d ed. Supp.1997). The court disagreed and denied the defense motion. The attorneys and the court also discussed what time period should be considered for telephone calls to constitute harassment under § 609.749, subd. 2(4) and (5) and the court held that the time period for telephone calls should be limited to March 1996.

The issue was also raised as to the time periods that should be considered for the pattern of harassment charge under § 609.749. The state argued to include the conduct in April of 1995 as part of the pattern of harassment; the defense objected because the complaint only alleged pattern of harassment in March 1996. The defense eventually agreed to the instruction but argued that by giving the instruction the prosecution was conceding that defendant's conduct on all charges would constitute one offense and that therefore defendant could not be sentenced on each separate offense. The jury was thereupon instructed to consider "April 1995 and/or March 1996" for the purpose of deciding whether appellant "directly or indirectly manifested a purpose or intent to injure the person, property or rights of Debra Mary Ellefson by the commission of an unlawful act" under subdivision 2, section 1 of Minn.Stat. § 609.749.

Under the stalking statute, the predicate conduct for pattern of harassment can be proven by two or more violations of either § 609.749, subd. 2--the crime of stalking, or of the ten other criminal statutes listed in § 609.749, subd. 5(b), which include burglary, assault, and criminal damage to property. In appellant's case the pattern offense charged only included...