Parle County District Court File No. 37-CR-14-191. Jesson,
Swanson, Attorney General, James B. Early, Assistant Attorney
General, St. Paul, Minnesota; and Richard G. Stulz, Lac Qui
Parle County Attorney, Madison, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders
Erickson, Assistant Public Defender, St. Paul, Minnesota (for
Considered and decided by Jesson, Presiding Judge; Stauber,
Judge; and Reyes, Judge.
Statutes section 609.749, subdivision 2(4) (2014), which
defines stalking to include repeatedly making telephone
calls, is not unconstitutionally overbroad on its face or as
applied in violation of the First Amendment to the United
Donald Joseph Hall challenges his conviction of stalking
under Minnesota Statutes section 609.749, subdivision 2(4),
which defines stalking as repeatedly making phone calls,
sending text messages, or inducing a victim to make phone
calls, whether or not conversation ensues. Hall argues that
this portion of the stalking statute is unconstitutionally
overbroad in violation of the First Amendment. He also argues
that there is insufficient evidence to support his
conviction. Because subdivision 2(4) is neither
unconstitutionally overbroad on its face nor as applied to
Hall, and because there is sufficient evidence to support his
conviction of stalking, we affirm.
to testimony at trial, Hall and the victim, B.R., both lived
in a small town in greater Minnesota. B.R. was the city clerk
and treasurer who, among other duties, managed the billing
for residential utilities. The two knew each other. When Hall
initially moved into town, B.R. invited him over for the
holidays because he did not have family in town.
town had problems with its water-meter reader, and it would
occasionally overcharge residents for their usage. Hall
complained to B.R. when he received several inaccurate water
bills in 2013 and 2014. In an unrelated matter, in early
August 2014, Hall's tomato and corn plants in his garden
had been cut down, but the police department was not able to
locate the responsible party; again, Hall complained to B.R.
evening of August 26, 2014, Hall had trouble falling asleep.
He started looking through his bills and noticed that one of
them was actually addressed to the city's post office.
Thinking that B.R. was making him pay for the post
office's bill, Hall made five calls to the city
hall's telephone number over the course of one hour in
the middle of the night. The five voicemails he left for B.R.
are at the heart of this case.
first voicemail began with complaints about the mistreatment
of neighborhood dogs. As the voicemail continues, his tone
became increasingly hostile. He says that "this bullsh-t
is going to come to an end." He tells B.R. that she is
"done" and that the locals are waiting for someone
like him to "step up to the plate and swing the
bat." He adds, "Your bullsh-t is about to
end." He then described rumors about how B.R. was kicked
out of her house for being immoral and how her family had
killed a man. He says that "things are going to happen
around here real quick, real quick, all done." He ends
the voicemail by insulting B.R.'s husband as a "fat
mother f-cker." The first voicemail is 3 minutes and 25
seconds long and includes more than 20 expletives. In his
second voicemail, made 16 minutes later, Hall insults
B.R.'s intelligence and that of other people in town. He
advises, "You don't wanna [sic] mess with me."
He said, "I'm not from around here, but my peoples
back there in the cities are going to make it happen."
He ends this voicemail by telling her that it is "time
for a wakeup call."
left a third voicemail half an hour later. He told B.R. to
resign the next day. He repeatedly warns her, "Don't
test me, don't, just resign." He said that this is
not a joke. He tells B.R. that State Auditor Rebecca Otto is
now investigating B.R. and the town. He threatens physical
violence against a neighbor, "You know what? That
f-cking punk down the road here . . . . Told him I'd
knock his a-- out in front of everybody and pull his pants
down and spank him like the b-tch that he is." He says
his neighbor is "the f-cking problem. You're the
problem too." Again, he demanded that she resign, that
she's "done." He tells B.R., "If you think
I am just bullsh-tting you [B.R.], see you don't know who
my family is. Alright, I came here trying to be peaceful, not
having problems with people, but for some reason you f-cking
idiots around here wanna [sic] f-cking play games with
people." He warns, "Don't play games with
me." He ends the voicemail with, "You're gone,
minutes later, in a fourth voicemail, Hall complains about
the neighborhood dogs. In his fifth call, Hall again calls
B.R. more insulting names and recommends that she call
Rebecca Otto. He tells her to resign again, saying
"You're all done." He calls her husband a
"fat f-cking pig" and demands that she "get
the f-ck out of our town."
following morning, B.R. arrived at her office and listened to
the messages. B.R. called the police, and Hall was charged
with stalking for repeatedly making telephone calls, knowing
that the conduct would cause the victim to feel frightened,
threatened, persecuted, oppressed, or intimidated and, in
fact, causes this reaction. See Minn. Stat. §
609.749, subds. 1, 2(4) (2014). Before trial, Hall moved to
dismiss the charge for a lack of probable cause and on the
ground that his voicemails were protected speech. The
district court denied his motion, concluding that the
voicemails were not protected speech and there was sufficient
probable cause to support the charge.
trial, B.R. testified that she was shocked and terrified
because of the sound of his voice and the names she was
called. She believed the voicemails were a definite threat
because Hall repeatedly said she was "done." After
a jury trial, Hall was found guilty and sentenced to 37
months in prison. This appeal follows.
I. Is Minnesota Statutes section 609.749, subdivision 2(4),