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State v. Barsch

Court of Appeals of Minnesota

August 19, 2013

State of Minnesota, Appellant,
v.
Kevin Earl Victor Barsch, Respondent.

UNPUBLISHED OPINION

Polk County District Court File No. 60-CR-11-595

Lori Swanson, Attorney General, St. Paul, Minnesota; and Greg Widseth, Polk County Attorney, Crookston, Minnesota (for appellant)

Charles F. Clippert, Clippert Law Firm, St. Paul, Minnesota (for respondent)

Considered and decided by Chutich, Presiding Judge; Peterson, Judge; and Smith, Judge.

PETERSON, Judge.

A jury found respondent guilty of one count of engaging in a pattern of stalking conduct and 13 counts of violation of an order for protection. Respondent moved for judgment of acquittal, alleging that appellant failed to prove venue. The district court granted the motion. Appellant challenges the district court's ruling that the evidence offered at trial was insufficient to prove venue. We affirm in part, reverse in part, and remand.

FACTS

Respondent Kevin Earl Victor Barsch and K.B. married in 2000. Following a hearing at which respondent and K.B. testified, K.B. obtained an order for protection (OFP) on March 1, 2011. The OFP stated that "[r]espondent shall have no contact, either direct or indirect, with [K.B.], [or the] children, whether in person, by telephone, mail, or electronic mail or messaging, through a third party, or by any other means[.]" At that time, respondent lived in Fosston and K.B. lived in McIntosh. Both cities are in Polk County.

Within three days after the OFP was issued, respondent began to make cell-phone calls to K.B. At first, K.B. received some calls when she was at a conference at a location that is not established in the trial record. After reporting these calls to Polk County Deputy Sheriff Jesse Haugen, K.B. went to the Fosston Law Enforcement Center, and Haugen recorded the messages from K.B.'s cell phone, photographed the display on her cell phone that showed the incoming calls, and took K.B.'s statement. K.B. recognized both respondent's voice and the cell-phone numbers from which the calls originated, and she identified respondent as the person who left the messages on her cell phone. K.B. did not know where respondent was, but she suspected that he still lived in Fosston. When asked at trial if there was any evidence that supported that belief, K.B. testified that when she went with law enforcement to respondent's Fosston residence in "late March" to retrieve her property, "the coffee pot was on."

Haugen contacted respondent by calling one of respondent's cell-phone numbers. Respondent answered and admitted that he knew about the OFP, but he refused to provide information about where he was. He said to Haugen, "I'm not in Iowa. I'm not in the northern states or midwest states and I don't want to get arrested, so I'm not telling you where I am." Haugen testified that one of respondent's cell-phone numbers was from an area code that he did not recognize as a Minnesota area code.

On March 8, Haugen took a second report from K.B. regarding a second series of calls that respondent made to K.B., and on March 16, K.B. reported a third series of calls from respondent. This time, she reported the calls to Polk County Deputy Sheriff James Juve. Juve phoned respondent, who answered and admitted making the calls in violation of the OFP and again said that he would not reveal his location because he did not want to be arrested.

For placing these phone calls, respondent was charged with one felony count of a pattern of stalking conduct, in violation of Minn. Stat. § 609.749, subd. 5(a) (2010), and 13 misdemeanor counts of violation of an OFP, in violation of Minn. Stat. § 518B.01, subd. 14(b) (2010). At the beginning of trial, outside the jurors' presence, defense counsel questioned respondent on the record as follows:

[DEFENSE COUNSEL]: . . . [W]e've reviewed the evidence in this ...

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