Koochiching County District Court File No. 36-CR-11-760
Lori Swanson, Attorney General, St. Paul, Minnesota; and Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for respondent)
Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Worke, Judge; and Connolly, Judge.
Appellant challenges her pattern-of-stalking-conduct and violation-of-a-restraining-order convictions, arguing that (1) the evidence is insufficient to support the convictions, (2) the district court erred by awarding restitution, and (3) the district court erred by imposing multiple sentences for conduct stemming from a single-behavioral incident. We affirm appellant's convictions, but reverse and remand the restitution award and the sentence for the violation-of-a-restraining-order conviction.
Sufficiency of the evidence
A jury found appellant Kerry Leigh Kelly guilty of pattern of stalking conduct and violation of a harassment restraining order (HRO). She first argues that the evidence is insufficient to sustain the convictions.
In considering a claim of insufficient evidence, this court's review is limited to an analysis of the record to determine whether the evidence, viewed in a light most favorable to the conviction, is sufficient to allow the jury to reach the verdict that it did. State v. Hurd, 763 N.W.2d 17, 26 (Minn. 2009). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that appellant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004). We assume that "the jury believed the state's witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). And we defer to the jury's credibility determinations. State v. Watkins, 650 N.W.2d 738, 741 (Minn.App. 2002).
Appellant claims that the evidence is insufficient to support her conviction of violating an HRO because the state failed to introduce an HRO into evidence or otherwise establish the prohibited conduct. At the commencement of appellant's jury trial, although not offering the HROs into evidence, the parties stipulated that the victim, S.A., obtained two HROs against appellant.
S.A. testified at trial that she obtained the first HRO against appellant in early March 2008, following an incident on February 3, 2008, when appellant made ten hangup phone calls to S.A.'s home between 1:37 a.m. and 2:21 a.m. Despite awareness of the HRO, appellant followed S.A. home from work in July 2008, and in August 2008, someone threw an object out of a window of appellant's vehicle that hit S.A.'s vehicle.
S.A. testified that she obtained the second HRO against appellant on June 10, 2010. Despite awareness of the HRO, appellant followed S.A. on July 13, 2011, and someone threw a water bottle out of a window of appellant's vehicle that hit S.A.'s vehicle, and appellant called S.A. a "b---h." On July 24, appellant followed S.A. and S.A.'s mother, E.A., to a store and parked her vehicle in the parking space in front of S.A., so that the vehicles were bumper to bumper. As S.A. and E.A. left the parking lot, appellant yelled "c--t" at her. And on September ...