Carver County District Court File No. 10-CR-11-445.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark Metz, Carver County Attorney, Dawn M. O'Rourke, Assistant County Attorney, Chaska, Minnesota (for respondent).
Cathryn Middlebrook, Interim Chief State Public Defender, Lydia M. Villalva Lijò, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Smith, Presiding Judge; Worke, Judge; and Rodenberg, Judge.
On appeal from his felony conviction of violating an order for protection (OFP), appellant Travis Clay Andersen argues that the district court committed plain error by failing to instruct the jury that an element of the charged offense is that he knowingly violated the OFP. Because the district court improperly instructed the jury on the elements of the felony OFP offense, we reverse and remand for a new trial.
I.H. ended her four-year relationship with appellant around December 2010. On January 4, 2011, I.H. requested and obtained an OFP in Hennepin County prohibiting appellant from contacting her. That same day, appellant was personally served with the OFP at his home by Carver County Sheriff's Deputy Rick Raschke. Deputy Raschke testified that he specifically told appellant at the time of service that the OFP prohibited contact with I.H. directly, by e-mail, "third parties or anything of that nature."
I.H. testified that, on April 3, 2011, and with the OFP still in effect, she was at the home of E.B. I.H. and E.B. returned from a trip to Target in the early evening. As they pulled into the driveway, appellant approached their vehicle from the direction of a neighbor's house. Appellant said he wanted to speak with I.H. and I.H. refused. E.B. told appellant that he needed to leave and then called 911. Appellant walked across the street and sat down. He approached I.H. and E.B. again before getting in his car and leaving the area. I.H. and E.B. both testified that appellant drove his car in reverse until he was out of the area.
Carver County Deputies Matthew Beck and Jamie Horvath responded to E.B.'s 911 call. Deputy Beck spoke to I.H. and E.B. while Deputy Horvath drove around the area looking for appellant. Later, Deputy Beck called appellant and asked where he was. Appellant responded that he was "not in the area." Prior to this statement, Deputy Beck had not provided information about the reason for the call. Despite additional searching, officers were unable to locate appellant on that day.
Appellant was charged with a felony violation of an OFP under Minn. Stat. § 518B.01, subd. 14(d)(1) (2010). The district court instructed the jury regarding the elements of the offense:
The elements of this offense are first, that there was an existing court order for protection. Second element is that the defendant violated a term or condition of that order. The third element that the State must prove is that the defendant knew of the existence of the order. The fourth element, ...