Collateral Attacks on the OFP Statute Not Permitted as Defense to Criminal Prosecution for Violation of OFP; No Authority in OFP Statute to Forfeit & Destroy Firearms.

State v. Romine, Minn.Ct.App., 12/9/2008.

A.A. obtained an order for Protection against Mr. Romine, her estranged husband.  The Order prohibited him from, among other things, going to A.A.'s place of employment at Henry Sibley High School.  Romine initially appealed the issuance of the OFP but dropped the appeal after a while.

While the OFP was in force, Mr. Romine went up to the  high school to see the superintendent, whose office was in the high school.  As a result, the state charged him with violating the OFP, Minn.Stat. 518B.01, S. 14(b).

Mr. Romine made various constitutional challenges to the OFP statute but the Court says that he cannot collaterally attack the OFP statute as part of his criminal defense. The court relies upon what it says is the general rule that "a party’s failure to appeal the issuance of a court order precludes a collateral attack on that order in a subsequent proceeding," citing State v. Cook, 275 Minn. 571, 148 N.W.2d 368 (1967).  There is nothing terribly surprising in this ruling.  See, State v. Harrington, 504 N.W.2d 500 (Minn.Ct.App. 1993).  (A defendant who had not appealed from the issuance of a restraining order pursuant to chapter 609 was precluded from challenging the constitutionality of the restraining order in a subsequent criminal prosecution for a violation of the order.)

The defense raised a lot of other appeal issues, one of which was prosecutorial misconduct during closing argument.  The defense objected to two of the prosecutor's statements: 

“It wasn’t easy cross-examining a 14-year-old person, but that’s who [Romine] had testify here, a 14-year-old child about things that families try to hide, and that was a kind of painful exercise we had to sit through.” Romine also objected when the prosecutor stated:

Counsel would like you to simply make a mockery of our justice system, of court orders and seals and affidavits, and indicate that Mr. Romine was not personally served this at a courthouse on that date somehow. You folks can go and say, we think this is just not plausible. You have to say also that a strict court order for protection to prevent this sort of harm from happening to Ms. Romine is also not nonsense.

The state did not argue that these remarks were proper, so the appellate court assumed that they were.  Nonetheless, the court also concluded that the statements were harmless error.

Lastly, the appeals court held that the district could has no authority under 518B to order the forfeiture and destruction of Mr. Romine's firearms as part of a sentence for violation of subdivision 14(b).  Subdivision 14(l) does permit the court to restrict the possession of "pistols," but there is no authority to order the forfeiture and destruction.  The appeals court remanded the case for re-sentencing, at which time Mr. Romine may, if he wishes, raise the Second Amendment Supreme Court opinion, District of Columbia v. Heller, 128 S. Ct. 2783 (2008).