Venue in OFP Prosecution, Based Upon Sending an Email, is Proper in Either the Sender’s or the Recipient's Location But State Failed to Prove Either in this Case

State v. Pierce, Minn.Ct.App., 12/7/2010.  The Hennepin District Court granted an order for protection to Wenona Kuhrman against Mr. Pierce.  The order specifically prohibited any contact by electronic means, including email.  Mr. Pierce sent Ms. Kuhrman an email from his MySpace account.  The state charged Mr. Pierce with violating the order for protection.

Trial testimony did not establish where Mr. Pierce was when he sent the message; testimony also did not establish just where Ms. Kuhrman was when she first read the email.  Alas, there also was neither testimony about where Ms. Kuhrman was when an officer viewed the message on her computer, nor testimony about what police department did so.

There are two questions here:  venue and sufficiency of the evidence.  First, venue.  Article I, Section 6 of the state constitution says that prosecution must be in the county or district where the crime occurred so the state had to prove that the violation was committed in Hennepin County.  The appellate court concludes that the offense of violating the order for protection includes both the sending and the receipt of the email.  So, venue can be proper in either the sender’s location or the recipient’s location. 

But, did the state prove either location?  No.  The state offered no evidence to establish where Mr. Pierce was when he sent the email.  While the state offered evidence of Ms. Kuhrman’s address in Hennepin County, that is not sufficient.  The OFP statute contains no residence-based venue provision, unlike the harassing telephone calls statute, 609.79, which specifically includes where the receiver resides.  That said, it appeared to the appellate court that Ms. Kurhman’s computer was likely a laptop, which she could have opened, literally, anywhere on the planet.  The appellate court also rejects the invitation to adopt a continuing violation theory, based upon Ms. Kuhrman’s offer, while on the witness stand in an admittedly Hennepin County court room, to open her her computer and show everyone the offending email.