Defense is Prohibited From Arguing what a Witness Did Not Say in Court; Request For Review Pending

State v. Caldwell, Minn.Ct.App., 4/16/2012, petition for further review pending.  A jury convicted Mr. Caldwell of the first degree assault and drive-by shooting of P.B., both for the benefit of a gang.  Mr. Caldwell shot P.B. in the knee cap, apparently in a display of disappointment that P.B. didn’t want to join Mr. Caldwell’s street gang.

Officers showed a witness, Dyshay Driver, a photo array that included Mr. Caldwell.  Mr. Driver picked out Mr. Caldwell, saying that he looked like the man who shot P.B.  The following day, Mr. Driver positively identified Mr. Caldwell as P.B.’s shooter.  At trial, however, the prosecutor did not ask Mr. Driver to make an in court identification of Mr. Caldwell, and defense counsel didn’t ask him about it either.  What defense counsel did try to do – unsuccessfully – was argue to the jury what Mr. Driver had not done:  that Mr. Driver had not made an in court identification of Mr. Caldwell as the shooter:

[W]hen Mr. Driver was here in court yesterday he said absolutely nothing about this man sitting here. If he recognized that man [Caldwell] as the shooter, he could have told you that, but he didn’t.

The state objected and the trial court sustained that objection.  The court of appeals upholds the trial court, saying that the attempted argument misled the jury and thus it had not been an abuse of discretion to forbid this argument.  The court relied upon a gun case, State v. Davidson, 351 N.W.2d 8 (Minn. 1984), the applicability of which does not seem remotely apparent.  In that case, neither the prosecutor nor the defense had questioned the police about whether the gun had been processed for fingerprints; or, if not why not.  The defense had wanted to argue (but was precluded from doing so) either that there were no fingerprints found on the gun or that the police had not bothered to process the gun for prints.  The trial testimony about what the police had or had not done outside the courtroom  supported neither of these arguments, and was, indeed, misleading.

Mr. Caldwell didn’t want to argue about what had or had not happened outside the courtroom.  Rather, he wanted to argue what had taken place right in front of the jury:  Mr. Driver didn’t identify Mr. Caldwell as the shooter during his testimony.  The reliance on Davidson is misplaced.  Mr. Caldwell has asked the supreme court to review this opinion.

State Concedes Error in Conviction of First Degree Felony Murder Based on Unlawful Sale of Controlled Substance Where Defendant was Purchaser of Drugs not Seller

State v. Boldman, Minn.S.Ct., 4/18/12.  Mr. Boldman went over to Mr. Caflle’s place to buy some weed.  Mr. Cafle wound up dead from gunshot wounds and Mr. Boldman found himself charged with first degree felony murder under a statute that says “whoever ‘causes the death of a human being with intent to effect the death of the person or another’ while committing a felony involving the unlawful sale of a controlled substance, is guilty of first-degree murder.”   Mr. Boldman argued to the trial court and to the supreme court that because he was the purchaser of marijuana and not the seller, this statute did not apply to him. 

The supreme court ducks the answer to the question because the state apparently didn’t want them to answer it.  Having defended the application of the statute to Mr. Boldman before and during trial, the state abandons that position on appeal and concedes error.  That was easy. 

The jury had also convicted Mr. Boldman of second degree intentional murder.  The Supreme Court concludes that the state presented enough evidence to support this conviction, utilizing the somewhat baffling analysis adopted in State v. Matthews, 800 N.W.2d 629 (Min. 2011).  So, the court remands back to the trial court to sentence Mr. Boldman on this count.

In a pro se argument Mr. Boldman argued that the state had violated its discovery obligation by failing to provide a transcript of a recorded police interview of a defense witness.  The state started to impeach the witness by use of this transcript which had not been disclosed to the defense.  When the defense objected, the state abandoned the effort.  The state argued that there had been no violation because the state had provided the recording of that interview.

The supreme court again ducks the question whether the state (and arguably the defense as well) may choose the form of the evidence provided to the defense under the criminal rules.  Although local practice and rules may require advance preparation and disclosure of transcripts of recordings, the rules themselves do not require it, and who really reads those pretrial orders anyway.  Here, the court avoids the question by jumping first to the conclusion that there was no prejudice anyway.

Restitution Claim Sufficiently Itemized; Crawford Claims Rejected Because Statements Were Not “Testimonial”.

Hughes v. Minnesota, Minn.S.Ct., 4/25/12.  Back in 2006, a jury found Mr. Hughes guilty of the first degree premeditated murder of his wife, and the court sentenced him to life without possibility of parole.  The court also ordered him to pay restitution to the Crime Victim’s Reparations Board.  Four years later, Mr. Hughes filed a post conviction petition that challenged a lot of things, but only two of which did the supreme court actually discuss.

One was the matter of restitution, which may not have actually been one of the better issues that Mr. Hughes raised.  One wonders what Mr. Hughes had in mind when he said that the jury’s passions were “inflamed” when shown a demonstration using a shotgun.  Anyway, the trial court had awarded restitution to cover his wife’s funeral expenses.  Mr. Hughes complained, apparently for the second time, that this request had not been sufficiently itemized to satisfy the statute’s requirement that a claim for money include both an itemization and description of the loss.  The appellate court rejects this claim, arguing backwards that since the trial court had thrown out a couple of items – something about transportation expenses and a charitable donation – there must have been a pretty specific itemization supporting the claim.

The other claim that the appellate court took up was a confrontation claim.  Mr. Hughes complained that the trial court had improperly admitted statements that his wife made before her death both to the police and to her divorce attorney.  The mistake was, Mr. Hughes said,  was that the state had not proved that in procuring his wife’s absence from trial his purpose had been to prevent her from testifying.  Giles v. California, 554 U.S. 353 (2008).   The state pointed out that it was Mr. Hughes who had procured his wife’s absence from his trial and so had forfeited his confrontation rights.

The post conviction court thought that this confrontation claim was procedurally barred because Mr. Hughes had not raised it in his petition for a writ of certiorari to the U.S. Supreme Court.  The Minnesota supreme court assumes without deciding that the claim was not procedurally barred because the Giles opinion had not been available in the prison law library until after the deadline for filing in the U.S. Supreme Court.  On the merits of the claim, however, Mr. Hughes does not fare well.  As to the statements to the divorce attorney, which included derogatory descriptions of Mr. Hughes’s control problem and more, the appellate court concludes that these were not “testimonial” and thus not excluded under Crawford.   His wife’s divorce lawyer was not a government agent and she had not made the statements an eye toward a criminal prosecution for her death.

As to the statements to the police, these occurred during a “welfare check” some days before her death, during which Hughes’s wife told the officer that everything was fine, that Hughes was not at home, and that they were “trying to work things out.”  The officers neither asked questions, nor did the wife make any statements with the purpose of “establishing or proving past events potentially relevant to later criminal prosecution.”  Davis v. Washington, 547 U.S. 813 (2006)

New Trial Ordered Because of (a) Third Party Bullying of Defense Experts, and (b) Ineffective Assistance of Trial Counsel

State v. Beecroft & Beecroft v. State, Minn.S.Ct., 5/23/2012.  A badly splintered supreme court has granted Ms. Beecroft a new trial reversing her conviction of first degree premeditated murder of her just born baby and vacating her sentence of life with possibility of parole.  In doing so the court could not muster a majority opinion to support this laudable result.  Ms. Beecroft’s plight has been in the news practically since the prosecution began but most certainly since the bullying of defense experts by James Backstrom, the Dakota County Attorney – an office that was not prosecuting Ms. Beecroft – came to light.  Mr. Backstrom had been leading the charge in a campaign to prevent medical examiners from ever testifying for the defense on the theory that such behavior was a “conflict of interest.”  Mr. Backstrom was apparently totally unaware of a state statute, Minn.Stat. 390.251, which authorizes medical examiners to perform physical examinations or tests incident to any matter of a criminal nature “when requested” by a publicly appointed criminal defense attorney.  The Minnesota County Attorneys Association, in which Mr. Backstrom has been an active member, including its president, supported recent revisions to this statute.

Ms. Beecroft, then seventeen,  apparently hid her pregnancy and then gave birth alone and unaided.  The state alleged that she then immediately inflicted many stab wounds upon the just born baby.  Whether the baby was alive at the time of the stabbing became the mother of all “battle of the experts.”  The state said, yes; the defense said, no.

The state presented four experts, two in its case in chief and two more in rebuttal, all of whom opined that the baby had been born alive and had died of multiple sharp force injuries.  Sandwiched in between the state’s two pairs of experts the defense presented two experts –Anoka County Medical Examiner Dr. Amatuzio and former chief medical examiner from Suffolk County, New York Dr. Wetli -  both of whom opined that the baby had not been alive at the time of the stabbing. 

The defense had intended calling a third expert, Dr. Susan Roe, then an assistant medical examiner for Dakota County.  Dr. Roe had also agreed to serve as the defense’s in-court observer of the testimony of other experts to assist defense counsel both in cross examining the state’s experts and in preparing the defense expert’s testimony.  The defense had also consulted with Dr. Janet Ophoven, a part time assistant St. Louis County Medical Examiner.    Dr. Ophoven’s opinion was that the baby had been still born.

Mr. Backstrom got wind of the planned testimony and consultation services of these defense experts, especially Dr. Roe, and complained to Dr. Roe’s boss, Dr. Thomas.  He threatened not to renew the contracts of both doctors should Dr. Roe testify for the defense, whether in Ms. Beecroft’s case or another.  Meanwhile the Anoka County Attorney’s Office also got wind of Dr. Amatuzio’s planned testimony , most likely from an assistant Washington County Attorney who doubled as counsel for the Minnesota Sheriff’s Association and in that capacity complained to Mr. Backstrom about the nerve of medical examiners testifying for the (Beecroft) defense.  The Anoka County Attorney’s office “suggested” that it would behoove Dr. Amatuzio to testify as a private physician rather than in her official capacity.  Dr. Amatuzio took that suggestion to heart, stating, emphatically one supposes although the opinion doesn’t say, that she was in the court room only as a private citizen as though she was just some doctor who wandered in off the street and into the courtroom having nothing better to do.  Without those credentials coming into the record the trier of fact – the judge here – was free to discount her opinions:  “well, after all, the state’s experts were all medical examiners so her opinion doesn’t quite stack up to theirs.  Dr. Roe, on the other hand, bailed out of the Beecroft case all together, fearing for her and her boss’s financial livelihoods.  She said that she would neither testify nor consult with defense counsel.  That left Dr. Ophoven, who had already told defense counsel that her employment contract forbid her from testifying for the defense, an employment clause that had been inserted into her contract in furtherance of Mr. Backstrom’s  campaign that such testimony would be a “conflict of interest.”  Dr. Ophoven reluctantly agreed to assume Dr. Roe’s consulting role but she adamantly refused to testify and defense counsel did not try to force her to do so.

The trial court convicted Ms. Beecroft of first degree premeditated murder and sentenced her to life without possibility of parole.  On appeal – direct appeal and appeal from denial of a post conviction petition – the central issue was whether the shenanigans of Mr. Backstrom and his cohorts in pressing this “conflict of interest” theory interfered with Ms. Beecroft’s right to present her own witnesses and the ability to consult with her own expert witnesses such that she should be given a new trial.   (The supreme court had already sanctioned Mr. Backstrom for these behaviors.  In re Backstrom, 767 N.W.2d 453 (Minn. 2009).

The plurality opinion –Justices Paul Anderson, Meyer and Page – concluded that there had been “substantial interference” with Ms. Beecroft’s aforementioned right to present her own witnesses as a result of the actions of Mr. Backstrom and Dr. Ophoven’s boss, Dr. Uncini.  This interference was error, but it did not, according to the plurality, affect Ms. Beecroft’s substantial rights.  Similarly, the plurality concluded that Mr. Backstrom, et.al. also interfered with Ms. Beecroft’s ability to consult with her own expert witnesses – Dr. Roe – but this interfere did not affect Ms. Beecroft’s substantial rights.

The plurality latches onto “interests of justice” to support granting Ms. Beecroft a new trial:

Beecroft’s right to present a complete defense was limited by the conduct of several state actors. The record before us demonstrates that this conduct was not isolated.  It appears instead that there is a widespread point of view among law enforcement officials, prosecutors, and perhaps other state actors that it is a “conflict of interest” for medical examiners to work with criminal defendants. Here, the conduct of state actors interfered with Beecroft’s ability to consult with and call expert witnesses. These mistaken efforts by state actors unquestionably interfered with the independence of medical examiners, contravened clear legislative intent, and risked undermining Beecroft’s constitutional rights; therefore, we conclude that we must exercise our supervisory powers and reverse Beecroft’s conviction in the interests of justice.

So, where to get that fourth vote and how?  The plurality picks up the fourth vote necessary to reverse the conviction from Justice G. Barry Anderson, who concluded that Ms. Beecroft’s trial counsel had been ineffective:

I conclude that defense counsel’s failure to act to defend Beecroft’s substantial and fundamental interest in a fair trial, when faced with government interference with potential defense witnesses and inappropriate third-party contact with the trier of fact, requires reversal and a remand for a new trial. Because I conclude that defense counsel’s failure to act was objectively unreasonable and Beecroft was prejudiced by defense counsel’s inaction, I concur in the plurality’s decision to reverse Beecroft’s conviction and remand for a new trial.

Chief Justice Gildea and Justice Deitzen dissented, concluding that “interests of justice” did not warrant granting a new trial, and that defense counsel had not been ineffective.  This dissent concluded that Mr. Backstrom, et.al. had not substantially interfered with Ms. Beecroft’s rights, or if he did it was harmless error.  Justice Stras agreed with this dissent except for the part about “interests of justice.”  Justice Stras concluded that because there was, in his opinion, neither error in nor prejudice from Mr. Backstrom’s bullying there was no need to invoke “interests of justice.”  He also  thought that without either error or prejudice that this concept was a bit to squishy to be utilized.

There is good language in the plurality opinion proclaiming the independence of medical examiners and the absolute necessity that the defense be on an equal footing with the state in access to experts.  Here’s but two of many examples:

Medical examiners must be allowed to complete their death investigations without
the interference, or the appearance of interference, by other state actors, including law enforcement officials and prosecutors. Law enforcement officials and prosecutors must respect the independence, autonomy, and neutrality of medical examiners. Law enforcement officials and prosecutors also have a duty to help ensure the vindication of a
criminal defendant’s constitutional right to the consulting and testimonial assistance of medical examiners.

and,

Section 390.251 recognizes that forensic science is not and should not become the sole province of the police and prosecutors. In the search for truth and justice, forensic science must be “equally available to law enforcement officers, prosecutors, and defendants.”NRC Report, supra, at 17 (emphasis in original). Likewise, medical examiners, in their role as forensic scientists, must not be beholden to the police and prosecutors. Instead, as independent public officials, medical examiners must be available to advise and assist publicly appointed defense counsel and to testify on behalf of criminal defendants. See Minn. Stat. § 390.251; see also Minn. Stat. § 611.21 (2010) (requiring a district court to authorize expert witness fees for indigent defendant if the court finds that the expert services are necessary). Today, we reaffirm what the law already mandates—medical examiners are independent public officials, free to make examinations on behalf of, submit reports to, consult with, and testify at the request of criminal defendants.

Mr. Backstrom has accepted the plurality’s repudiation of his “conflict of interest” crusade, announcing its abandonment (at least in Minnesota) as a result of this opinion.  Who knows.  If next month the U.S. Supreme Court extends Graham’s exclusion of life without possibility of parole to all juveniles who commit a homicide then Ms. Beecroft will have one less risk to face on retrial.

Post Conviction Challenge to Conditional Release Term Imposed in Violation of Plea Agreement Arises at Time of Imposition of Term

Bee Yang v. State, Minn.Ct.App., 11/28/11, review granted & stayed, 1/17/12.  In January 2006, in accordance with a plea agreement, the trial court stayed execution of a 21 month sentence, during which the court told Mr. Yang that he would be subject to a five year conditional release term if his sentence were executed.  At the end of the year, when the trial court did execute that sentence, the court also informed Mr. Yang that the term of the conditional release was ten years not five.  More than two years later, Mr. Yang filed a post conviction to complain that the ten year conditional release term violated his due process rights and the plea agreement.

The post conviction court denied the petition as time-barred under Minn.Stat. 590.01, subd. 4(c).  The court of appeals upheld the post conviction court.  A post conviction petition must be filed within two years of either entry of judgment of conviction if not appeal is taken; or of an appellate court’s disposition of that direct appeal.  There are exceptions, one of which Mr. Yang invoked, which permits filing a petition that is not frivolous and is in the interests of justice.  However,a petition that relies on one of the exceptions must be filed within “two years of the date the claim arises.”  Here, the claim arose when the court imposed the ten year conditional release term instead of the five year term that had been promised at sentencing.

The Minnesota Supreme Court is reviewing this ruling in conjunction with several others that raise the same issue.

50 Year Extension of OFP Survives Constitutional Challenges in Court of Appeals But Under Review in Supreme Court

In the Matter of:  Vanessa Yoland Rew vs. Bergstrom, Minn.Ct.App., 12/27/2011, review granted, 3/12/12.  Ms. Rew obtained several orders for protection against Mr. Bergstrom as a result of his rather continuous –when he wasn’t in jail or prison – acts against her.  In July 2010, Ms. Rew asked that the current OFP be extended for 50 years, based on Mr. Bergstrom’s chronic bad behavior going back some thirteen years.  Up to this point Mr. Bergstrom had more or less agreed to the issuance and (sometimes) the modest extension of previous OFP’s, but he thought this went too far.  The trial court, however, granted the request and prohibited him from:

(1) committing acts of domestic abuse against respondent or the children; (2) having contact, either direct or indirect, with respondent or the children, “whether in person, with or through other persons, by telephone, letter, electronic means, or in any other way,” except according to the conditions for establishing parenting time; (3) coming within 120 yards of respondent’s residence, place of work, or church; (4) coming within 120 yards of the children’s school or childcare location; (5) coming within 50 yards of respondent or the children in public places; or (6) possessing, shipping, or transporting any firearm.

The Minnesota Supreme Court has accepted review of the case so for now here are the questions that the court of appeals addressed along the path of upholding the fifty year OFP:

1. Was the issuance of a 50-year OFP extension a violation of appellant’s First Amendment right to free speech?

2. Was the issuance of a 50-year OFP extension a violation of appellant’s due process rights?

3. Does the issuance of a 50-year OFP extension based on appellant’s prior OFP violations constitute double jeopardy?

4. Is Minn. Stat. § 518B.01, subd. 6a(b), an unconstitutional ex post facto law when the extension is based on OFP violations that predated enactment of the 50-year extension provision?

5. Did the district court err in ruling that Minn. Stat. § 518B.01, subd. 6a(b), does not require a showing of abuse?

Letter from Inmate to Trial Court Judge is Neither Petition nor Motion Conferring Jurisdiction on Court

Minnesota v. Henry, Minn.Ct.App., 1/9/12.  The trial court sentenced Mr. Henry to 288 months in prison for fleeing a peace officer in a motor vehicle resulting in death.  If that weren’t enough, the court also imposed a $77.00 surcharge and reserved restitution.  Sometime thereafter, the trial court ordered restitution of just under a thousand bucks.

Mr. Henry commenced filing various pro se pleadings back with the district court, all of which got denied.  Perhaps in frustration Mr. Henry sent a letter to the judge inquiring of the court about the $77.00 surcharge.  The trial court wrote back, informing Mr. Henry, perhaps for the first time, of the amount of restitution that he owed. It does not appear that the prosecutor got any of this correspondence.

Mr. Henry filed a notice of appeal from the court’s letter in to him.  The court of appeals said now, just wait a minute.  This correspondence is neither a post conviction petition nor a motion for something or other.  A post conviction petition must at least include a statement of facts and grounds for relief.  A motion must at least state grounds for the requested relief, be supported by affidavit and served on other parties.  And, if somehow Mr. Henry got around all that, the judge’s letter back to him didn’t grant any relief whatsoever so it’s not a final order from which an appeal could be taken.

Oh, that restitution?  Rule 33.03 does not excuse lack of notice of entry of the restitution order does not affect the time to appeal. 

Squad Computer’s Information Supports Investigatory Stop.

State v. Cox, Minn.Ct.App., 11/28/11.  A police officer in  Sartell, Minnesota – “A Great Place to Live”- punched in Mr. Cox’s license plate number as he followed Mr. Cox.  The computer told the officer that this license plate had expired nearly two years ago, but the officer could see a current license tab.  The Officer stopped the car, determined that the tabs were, in fact, valid, and then determined that Mr. Cox was intoxicated.  Mr. Cox lost his motion to suppress the evidence of intoxication after which he stipulated to the state’s case.

Mr. Cox said that once the officer determined that the tabs were valid any suspicion that he previously held to justify the investigative stop vanished.  The court of appeals rejected this argument by concluding that the officer’s suspicion was that the tabs were stolen, a suspicion not dispelled before he began his intoxication inquiry.

Mr. Cox also argued that information that the officer obtained from his squad computer could not ever be the sole basis to support a reasonable suspicion for an investigatory stop.  Such stops, however, based on information obtained from a squad computer are routinely upheld; State v. Pike, 551 N.W.2d 919 (Minn. 1996).  Had the officer been aware of facts that would have made reliance on the squad computer un-reasonable Mr. Cox might have had some traction with his argument but there was nothing there in this instance.

Lastly, because the officer was suspicious of stolen tabs rather than invalid/expired tabs, it was okay for him to have approached to car to chat up Cox about the discrepancy.  At that point, the officers smells the booze and it’s all over.

Local Jail Time as a Condition of Probation on a Stay of Adjudication is Authorized.

State v. Moody, Minn.Ct.App., 12/12/2011.  Mr. Moody pled guilty to felony fifth degree controlled substance possession under a plea agreement in which the state agreed to a stay of adjudication and a forty-five day cap on jail time.  The court followed the deal, including serving the forty-five days.

Mr. Moody wanted to appeal but the state first argued that he could not appeal a stay of adjudication as of right but could only pursue a discretionary appeal.  However, a stay of adjudication imposed for a felony offense is a sentence that a defendant may appeal as of right under Rule 28.02, subd. 2(3).  State v. Allinder, 746 N.W.2d. 923 (Minn.Ct.App. 2008).  So, on to the appeal.

Mr. Moody argued that Minn.Stat. 152.18 is not a conviction and that jail time is not a reasonable condition of probation when no conviction of guilt has been entered.  The appellate court disagrees, pointing to language from previous opinions which at least observe without disagreement that jail time as a condition of a stay of adjudication is quite common.  Here, Mr. Moody’s plea agreement contemplated local time so for both these reasons the trial court was authorized to impose the jail time as a condition of probation.  The appellate court also ruled that the trial court had not abused its discretion in doing so.

A Felony Conviction That is Subsequently Deemed a Misdemeanor Qualifies Nonetheless as a Predicate Felony for First Degree DWI

State v. Coleman, Minn.Ct.App., 1/3/2012.  This is a DWI prosecution.  Back in 1990, Ms. Coleman pled guilty to a felony, got a stay of imposition, successfully completed probation, and on discharge the felony dropped to a misdemeanor.

Ten years later, police stopped Ms. Coleman on suspicion of driving intoxicated.  The state charged her with first degree DWI, enhanced to first degree by the 1990 conviction.  She argued that the misdemeanor disposition of that prior felony precluded its use as the required predicate felony by which to enhance the DWI offense.  Here’s what the statute says:

Notwithstanding a conviction is for a felony: . . . (2) the conviction is deemed to be for a misdemeanor if the imposition of the prison sentence is stayed, the defendant is placed on probation, and the defendant is thereafter discharged without a prison sentence.

Minn.Stat. 609.13.  The problem is, this statute does not say that the conviction is deemed to be a misdemeanor for all purposes; in fact, it doesn’t say just when it’s deemed to be a misdemeanor.  (Under the Guidelines, a stay of imposition of sentence is treated the same as a stay of execution and thus counts as a prior felony.)  The appellate court points to other instances in which 609.13 is of no avail to a litigant making a similar argument, so Ms. Coleman’s prior conviction, deemed to be a misdemeanor somewhere, is not so deemed here.

The Harassment Statute’s Requirement of an “Unlawful Act” is Not Met by Proof Only of Harassment

State v. Pegelow, Jr., Minn.Ct.App. (1/9/2012).  K.Z. gave Mr. Pegelow some nude photographs of herself.  A few months later, some of these photographs turned up in the men’s restroom where K.Z. worked.  A store surveillance camera showed Mr. Pegelow come into the store, enter the restroom, then leave – all on the same day that the photographs were found.  The State charged Mr.Pegelow with gross misdemeanor harassment.  Here’s what the statute says:

Subdivision 1. Definition. As used in this section, “harass” means to engage in intentional conduct which:

(1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and

(2) causes this reaction on the part of the victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated. . . .

Subd. 2. Harassment and stalking crimes. (a) A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:

(1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;

(2) stalks, follows, monitors, or pursues another, whether in person or through technological or other means;

(3) returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;

(4) repeatedly makes telephone calls, or induces a victim to make telephone calls to the actor, whether or not conversation ensues;

(5) makes or causes the telephone of another repeatedly or continuously to ring;

(6) repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages, or other objects; or

(7) knowingly makes false allegations against a peace officer concerning the officer’s performance of official duties with intent to influence or tamper with the officer’s performance of official duties.

Minn. Stat. § 609.749, subds. 1-2(a) (2008).  [Emphasis added.]  The state said that the “unlawful act” up there in the language of the statute only had to meet the definition of “harass.”  Mr. Pegelow, on the other hand, said that the state had to prove an “unlawful act” that is separate from the definition of “harass.”  And, posting nude photos of your former girlfriend may be harassment but it’s not an “unlawful act” under the statute.  That being so, the state’s evidence did not sufficiently prove Mr. Pegelow’s guilt so the conviction is reversed.