Gross Misdemeanor or Felony Violation of Harassment Restraining Order Requires Proof that Defendant Knowingly violated the Order

State v. Gunderson, Minn.Ct.App., 2/6/2012.  Mr. Gunderson’s mom, who lived on a ten acre spread, got a harassment restraining order against her son; it seems he drank a bit too much and then came around hounding her for money, somewhat offensively one supposes.  Among other restrictions, the HRO forbid Mr. Gunderson from coming around where his mother lived.

Now, Mr. Gunderson owned a shed located on Mom’s parcel where he kept his things.  One day, when mom wasn’t around, a witness saw Mr. Gunderson near the shed and in the detached garage to mom’s house.  The state charged him with gross misdemeanor and felony violations of the HRO.  Mr. Gunderson testified that he believed that the HRO only prevented him from contacting his mother and from entering her residence, but not from being on other parts of the ten acre spread when she wasn’t around. 

On both offenses, in addition to instructing the jury that there had to be an existing restraining order forbidding Mr. Gunderson from harassing his mother, the trial court also instructed the jury that Mr. Gunderson had to know of the order and to have violated it.  This instruction would have been okay had the offense been a misdemeanor but not for either a gross misdemeanor or felony.  This is because the statutory requirements are different:

(a) A person who violates a restraining order issued under this section is subject to the penalties provided in paragraphs (b) to (d).

(b) Except as otherwise provided in paragraphs (c) and (d), when a temporary restraining order or a restraining order is granted under this section and the respondent knows of the order, violation of the order is a misdemeanor.

(c) A person is guilty of a gross misdemeanor who knowingly violates the order within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency.

(d) A person is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person knowingly violates the order:

(1) within ten years of the first of two or more previous qualified domestic violence-related offense convictions . . . .

Minn.Stat. 609.748, subd. 6 [emphasis in original].  The trial court’s instructions were thus error, and were also plain, affecting Mr. Gunderson’s substantial rights.  (The instructions were error even though they complied with the model jury instructions, CRIMJIG 13.62–.63 (2006).)

Mr. Gunderson only disputed whether he knew that the restraining order prohibited him from coming on the property; he maintained that he thought the order only prohibited him from coming inside his mom’s residence and from having contact with her.  The appellate court concluded that a properly instructed jury, accepting this explanation, could have acquitted him.  He gets a new trial.

Mr. Gunderson represented himself at trial.  His request for appointment of a public defender to act as advisory counsel was denied, on the basis of Minn.Stat. 611.17(b)(4), which prohibits such appointments.  Relying on State v. Clark, 722 N.W.2d 460, 466 (Minn. 2006), the court of appeals says that the district court has the authority to appoint a public defender as advisory counsel, so denial of such a request has to be based on something else.