Omission of Instruction on Element of Offense is Subject to Prejudice Review, Which on These Facts, Entitles Defendant to New Trial

State v. Watkins, Minn.S.Ct., 12/4/2013.  In this role reversal of an Opinion, with the conservatives seemingly ruling in the defendant's favor and the lone moderate ruling against him, all is not what it seems.  In fact, this is a pernicious Opinion in which Justice Dietzen throws a bone to the defense by generously interpreting an element of an offense that no longer exists.  The court says that the "knowingly violates" element of felony violation of a DANCO - an element now removed from the statute - requires proof of subjective knowledge. 

The district court issued a Domestic Abuse No Contact Order (DANCO) in favor of Mr. Watkins’ girlfriend but the clerk misspelled the name of the protected person and listed an incorrect date of birth.  Thereafter, Mr. Watkins telephoned the protected person and sent her a Valentine’s greeting.  The state charged him with felony violations of the DANCO.

Mr. Watkins served up a defense against the charge by saying that because of the misspelling of his girlfriend’s name and the incorrect date of birth he didn't really know that he could neither call up his girlfriend nor send her a Valentine's Day card.  The trial judge neglected to instruct the jury that it  had to find that Mr. Watkins "knowingly violated" the DANCO.  The jury convicted him just the same.

The court of appeals reversed that conviction and granted Mr. Watkins a new trial.  That court said that the omission of an instruction on an element of the crime was a structural error that entitled Mr. Watkins to a new trial – a structural error that required no further analysis.  Read about that here.  Justice Dietzen, writing for five members of the court, gave Mr. Watkins his new trial but not for the reasons articulated by the court of appeals.  Justice Dietzen said that the omission of a jury instruction on an element of the offense was a mere “trial error” subject to a prejudice review. 

Justice Page dissents, saying that "knowingly violates" is an objective standard.  He attempts to support that assertion by citing to dicta in a footnote in a case that held that violation of an order for protection can't be the underlying crime on which to support a burglary conviction.  State v. Colvin, 645 N.W.2d 449 (Minn. 2002).  In the course of explaining that holding, the Court dropped in this footnote:

This is not to say that the state’s proof of each offense is complete upon showing evidence of the illegal entry because, as the court of appeals noted, as to the OFP violation, the state must also prove that a valid OFP existed, and that defendant knew of it.