The Existence of an Emergency is an Element of the Offense, Interference with Emergency Call.

State v. Hersi, Minn.Ct.App., 3/31/2009.  Mr. Hersi argued with his wife because he believed that she was sacrificing some quality time with the kids and him in order to chat way too long on the phone with a friend.  Each threw things - apparently the telephone in question -  at the other, resulting, perhaps, in damage to the phone.  The wife tried to throw something with a bit more heft -  a vacuum cleaner - at Mr. Hersi but he snatched it away from her.   At this point a grown up who was also in the apartment sent the couple to separate parts of the apartment.  While Mr. Hersi was in the bedroom, the wife called 911 from another room but, for once, didn't say anything on the phone.  Police came by anyway.  They arrested Mr. Hersi for gross misdemeanor interfering with a 911 call and for misdemeanor assault.  The jury acquitted Mr. Hersi on the later but convicted him on the former.  The main question on appeal had to do with the court's instructions on the 911 interference charge.

The statute, Minn.Stat. 609.78, prohibits the intentional messing with an "emergency call."  Such calls include 911 calls, but generally encompass any call for emergency medical (including an ambulance), police, fire or other assistance.  So, if you're bit by a rattlesnake and you call your neighbor to tell her to call the paramedics, you've made an "emergency call."  You've made the right kind of call, and the emergency actually exists.

The problem here (for the state) is that the jury instruction omitted any mention of an emergency actually existing.  Cf., Minn.Stat. 609.78, subd. 3, which defines what is an "emergency call."

(1) a 911 call;

(2) any call for emergency medical or ambulance service; or

(3) any call for assistance from a police or fire department or for other assistance needed in an emergency to avoid serious harm to person or property,

and an emergency exists.

Emphasis added.  Despite the state's assertion to the contrary, the Court of Appeals says that the existence of an emergency is an element of this offense, so the failure to instruct on that error was a mistake.  The evidence of the existence of that emergency is conflicting, and the jury acquitted Mr. Hersi on the assault charge.  So, he's entitled to a new trial.

The court goes on to conclude that the evidence was sufficient to support the conviction.  The officers who came over had a different account of what the wife had to say, testifying that she told them that Mr. Hersi had taken the phone away from her as she was calling 911 and then broke it.  This was enough, the Court concluded, for the jury to convict.