Hennepin County District Court File No. 27-CR-11-37760
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Michael F. Cromett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Stauber, Judge; and Toussaint, Judge.
Toussaint, Judge [*]
Appellant challenges his felony order for protection (OFP) violation conviction, arguing that the district court erred by (1) admitting evidence of his relationship with the alleged victim; (2) admitting unfairly prejudicial evidence of a conversation he had with a third party; and (3) improperly instructing the jury as to the subject crime's mens rea. We affirm.
M.R. obtained an OFP against appellant Darryl Brown on July 26, 2010, after Brown twice punched M.R. in her stomach while she was over six months pregnant with Brown's child. That OFP prohibited Brown from contacting M.R. The district court on August 30, 2011, per M.R.'s request, removed the OFP's no-contact provision; M.R. made her request because she wanted her son to know his father. But M.R., in October 2011, requested reintroduction of the no-contact provision due to "[m]ore abuse." The district court amended the OFP on October 25, 2011, scheduling the OFP to expire on July 26, 2012, and ordering Brown to not domestically abuse; contact; or, "EVEN IF INVITED, " go to the residence of M.R. The order states that Brown was present at the OFP hearing and "personally served."
Respondent State of Minnesota on December 6, 2011, charged Brown with one felony OFP-violation count under Minn. Stat. § 518B.01, subd. 14(a), (d)(1) (2010). During the March 2012 trial, M.R. testified as follows. Between October 25 and December 3, 2011, M.R. had contact with Brown and Brown came to and spent the night at her home. On December 2, after Brown asked M.R. whether he could visit their son at her home, M.R. did not want him to do so but told him that he could visit at 2:15 a.m.— December 3—because she believed that he would be unable to make it due to "[l]ong nights of drinking." Brown called M.R. repeatedly between 2:30 a.m. and 2:45 a.m. At approximately 4:00 a.m., Brown came to M.R.'s home while drunk; knocked, banged, pounded, and kicked the home's door for over 45 minutes; and told M.R. to open the door. M.R. told Brown from the kitchen window that M.R. would call the police if he did not leave; M.R. pretended to call the police to make Brown leave; Brown called M.R. additional times; and Brown shattered the passenger side of M.R.'s truck's windshield with "a big piece of debris" before leaving in a cab. M.R. then called the police.
M.R.'s roommate—who observed the December 3 incident—testified, substantially corroborating M.R.'s testimony. The district court permitted the prosecutor to play for the jury two phone calls made by Brown from jail, one made on December 3 to M.R. after the incident and one made on December 8 to a third party. The December 3 recording revealed Brown stating that "tonight, it wasn't my fault"; "I made my mistake, . . . I'm sorry"; and "I was out there with no . . . coat on." The December 8 recording indicated that a woman—identified by M.R.'s first name—gave Brown a time to go to her home and that Brown told the third party that Brown was not worried about his alleged OFP violation because "they didn't catch me there." That recording also revealed that, after the third party stated his belief that the OFP no longer was in effect, Brown explained that M.R. "went and got it where it was okay that we could have contact . . . [but] . . . after that incident had happened she went down there and got it again."
The jury found Brown guilty. This appeal follows.