Inmate's Letter Writing Campaign, in Violation of an Order For Protection, Sufficiently Establishes Pattern of Harassing Conduct.

State v. Franks, Minn.S.Ct., 5/14/2009.  The district court found Mr. Franks guilty of four counts of violation of an order for protection, and one count of pattern of harassing conduct.  The primary issue on appeal was whether the facts supported the later conviction; if so, then there's a sentencing issue as well.  To understand the former, there's nothing for it but a rather lengthy recitation of the "history of the relationship" of Mr. Franks and one "J.R."

Mr. Franks and J.R. met up in 1996, got married in 2002, and got divorced in 2004; along the way they had two children, A.F., and B.F.   In between the separation and the divorce, J.R. obtained an order for protection, which said that Mr. Franks:

"shall have no contact, either direct or indirect, with [J.R.] or the children, whether in person, with or through other persons, by telephone, letter, or in any other way” except by court-supervised visitation. Franks was present at the order for protection hearing.

Two days after the district court issued this order, Mr. Franks crow-barred his way into J.R.'s home, whereupon he committed various acts of mayhem upon her, for which he went to prison for seventy-eight months.  Then the letters started. 

But first, let's see what Mr. Franks must have done in order to be guilty of pattern of harassing conduct.  First, he must have committed two or more designated predicate offenses, including violation of an order for protection.  Next, he must have known or had reason to know that this conduct would cause a particular victim under the circumstances to "feel terrorized" or to fear bodily harm.  Lastly, he must have actually caused the victim to "feel terrorized" or to fear bodily harm.  Minn.Stat. 609.749, subd. 5(a).

The appellate court construes "to feel terror" to mean the same thing that "terrorize" means under the terroristic threats statute:

to cause extreme fear by use of violence or threats.

State v. Schweppe, 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975).  This is one of only two points that go to Mr. Franks.  Now, back to the letters.

Mr. Franks wrote to his young children (which J.R. had to read to them) ("It's all your Mom's fault that you can't come see me."); to J.R. ("Don't you think you've been playing a game with me plenty long?"); to one of J.R.'s friends(Describing his sexual prowess with J.R.'s friends while they were married with the invitation to be sure to let J.R. know about it; describing all the iron he's been pumping in the joint.); and to J.R.'s parents (It's your daughter's fault that I can't see my kids.). 

The generous view of all this correspondence was a plea to be able to see his children while in prison and when he got out.  The jaundiced view - and that of the appellate court - would be this:

  a reasonable trier of fact could have found that Franks had reason to know that the statements in his letters would send several messages to J.R., including that if she did not agree to prison visitation with his sons, Franks would punish J.R. financially; that he would cause her sons to despise her; that even in prison he still had the power to reach out and emotionally hurt and embarrass her with her friends; that he would soon be released from prison and that he would be even bigger and stronger than before; that her efforts to protect her sons were futile because once he was released from prison there was no way J.R. would be able to prevent contact; and that in the end he would obtain custody of their children. These threatened future acts, as well as the underlying acts of repeatedly sending letters in violation of the existing order for protection, are of a nature and tenor to support a finding that Franks had reason to know that his letters would cause J.R., who had been the victim of Franks’ past acts of terror, to fear bodily harm or to feel extreme fear.

Under this view, the evidence is more than sufficient.

Now for the sentencing issue.  The trial court sentenced (consecutively) on the four counts of violation of a no contact order.  The appellate court assumed, without deciding, that the trial court could sentence on either these four counts or the pattern count but not both.  However, under the Guidelines, the pattern count is the more serious offense so that's the one that should have been sentenced.  The appellate court remands the case with instructions to impose sentence on the pattern of harassing conduct conviction.