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In re of Welfare of D. L. H.

Court of Appeals of Minnesota

October 21, 2013

In the Matter of the Welfare of: D. L. H., Child

UNPUBLISHED OPINION

Scott County District Court File No. 70-JV-12-24728

Lori Swanson, Attorney General, St. Paul, Minnesota; and Patrick J. Ciliberto, Scott County Attorney, Shakopee, Minnesota; and Peter Orput, Washington County Attorney, Erin A. Johnson, Assistant County Attorney, Stillwater, Minnesota (for respondent state)

David Merchant, Chief State Public Defender, Susan Andrews, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Presiding Judge; Worke, Judge; and Rodenberg, Judge.

SMITH, JUDGE

We affirm appellant's misdemeanor adjudication for violating a harassment restraining order (HRO) and conclude that the state established, beyond a reasonable doubt, that appellant directly or indirectly had contact with the complainant.

FACTS

In November 2011, T.E. secured an HRO against D.L.H., both of whom are minors. On May 2, 2012, the Washington County Sherriff's Office issued a juvenile misdemeanor citation to D.L.H. for yelling names at T.E. as she walked past a local park. The Washington County Sherriff's Office issued the citation because the HRO forbade D.L.H. from having even "mere communication" with T.E. According to the violation report, T.E. and her sister left their home to go to a local gas station. Due to past instances of harassment against T.E., her father followed his daughters in his car. As the girls passed by a local park, T.E.'s father noticed D.L.H. in the park area and heard D.L.H. yell his daughter's name. T.E. informed the officer that "a guy named Wade" yelled her name and that she then heard D.L.H. call her a "whore" three times. D.L.H. denied the allegations.

In September 2012, the district court held a bench trial on the HRO violation. T.E. testified that she saw D.L.H. in the park area and "heard someone say whore . . . then someone said, yah you." T.E. explained that the person who yelled "whore" had "a female voice" and that she observed D.L.H. and two males in the park. T.E. related that she was positive D.L.H. was the one who yelled at her because D.L.H. and T.E. "used to be friends" and T.E. knew D.L.H.'s voice. T.E.'s sister testified that she heard voices from the park area but could not understand any specific words. However, on cross-examination, T.E.'s sister testified that she heard someone yell "hey you" and that she "heard the word whore." T.E.'s father testified that he followed his daughters in his car and kept his windows down and the radio off. As the girls approached the park he "heard [T.E.'s] name being called." T.E.'s father observed D.L.H. and two males in the park and testified that it was a female voice that yelled T.E.'s name. The officer who issued the citation testified consistent with his violation report. However, the officer added that a female friend was with D.L.H. in the park area.

D.L.H. testified that she was in the park area with one male and one female friend and that a "kid . . . named Wade was not that far away from us." According to D.L.H., it was Wade who called out T.E.'s name. D.L.H. stated that she "told [Wade] not to [yell at T.E.] because [she] had a restraining order." D.L.H. denied saying anything to T.E. or her sister. D.L.H.'s male friend testified that he was in the park area with D.L.H. and another female friend. The male friend stated that it was Wade who yelled at T.E. and called her a whore.

The state requested that the district court find that D.L.H. violated the HRO because "[T.E.] testified that [D.L.H.] yelled [T.E.'s] name and called her a whore . . . . You heard from the defense that there was [another female] who may have been present but that's not corroborated by any testimony beyond [D.L.H's] friends and family." D.L.H. contended that the district court received "significant and substantial evidence that there were two females in that park." The district court concluded that D.L.H. violated the HRO "based upon the expansive wording of the harassment restraining order." The district court explained that the HRO forbade "any contact with [T.E.], direct or indirect, and . . . indirect could mean even through third parties." After D.L.H. requested further clarification, the district court stated that "whore, " "hey you, " and T.E.'s name were all yelled and that "[the contact was] direct or indirect, whether or not it's from the actual defendant or a third party on the defendant's behalf."

The district court placed D.L.H. on 90 days' probation and subjected her to a number of conditions, including community service and a ...


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