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.