County District Court File No. 70-CR-12-23227
Swanson, Attorney General, St. Paul, Minnesota; and Ronald
Hocevar, Scott County Attorney, Todd P. Zettler, Assistant
County Attorney, Shakopee, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven
P. Russett, Assistant Public Defender, St. Paul, Minnesota
Considered and decided by Ross, Presiding Judge; Johnson,
Judge; and Bratvold, Judge.
conviction for surreptitious interference with privacy under
Minn. Stat. § 609.746, subd. 1(a) (2010), does not
require the defendant to have the "intent to intrude
upon or interfere with the privacy of a member of the
household" when he enters the property of another.
appeal from his conviction of interference with privacy of a
minor by surreptitious intrusion, appellant Fedor Pakhnyuk
challenges the sufficiency of the evidence. Because we
determine that a conviction under Minn. Stat. § 609.746,
subd. 1(a), does not require evidence that a person entered
the property of another with the intent to "intrude upon
or interfere with the privacy of a member of the household,
" we affirm.
who was 38 years old, was staying at his brother's home
in Shakopee to assist with a construction job. Pakhnyuk's
niece, who was 14 years old, also lived at the house. On
Saturday, July 14, 2012, Pakhnyuk's niece had three
friends over for a slumber party; all were about the same
age. That night, Pakhnyuk gave his niece and her friends
alcohol and made several crude, sexual remarks to them.
Pakhnyuk also touched the inner thigh of one friend while
they watched television. The friend, K.L., left the room, as
did the rest of the girls. They remained in the niece's
bedroom for the rest of the night.
days later, Pakhnyuk, his niece, and K.L. were still staying
at the same home. Pakhnyuk was sleeping on the living room
floor when his niece and K.L. walked through. The niece went
to her bedroom and K.L. went to the kitchen. Pakhnyuk stood
up, hugged K.L., and "grabbed [her] buttocks." K.L.
ran upstairs and locked the door. Later that night, K.L. was
undressing in the niece's bedroom when she saw Pakhnyuk
sitting on the garage roof staring at her through the window.
K.L. screamed. The niece roused her father, who confronted
state charged Pakhnyuk with three offenses: interference with
the privacy of a minor under Minn. Stat. § 609.746,
subd. 1(e)(2) (2010), which requires violation of Minn. Stat.
§ 609.746, subd. 1(a); furnishing alcohol to a minor
under Minn. Stat. § 340A.503, subd. 2(1) (2010); and
disorderly conduct under Minn. Stat. § 609.72, subd.
the jury trial, the district court used the pattern
instruction for interference with privacy. See 10A
Minnesota Practice, CRIMJIG 17.32 (2006). The jury
was instructed that, to convict Pakhnyuk of interference with
privacy of a minor, they must find the state proved the
following elements: (1) he "entered upon the property of
another"; (2) he "surreptitiously gazed, stared, or
peeped in the window or other aperture of the house or
dwelling place of another"; (3) he "acted with an
intent to intrude upon or interfere with the privacy of a
member of the household of another"; (4) his "acts
took place on or about July 19, 2012, in Scott County";
and (5) Pakhnyuk knew or had reason to know that a minor was
present. Pakhnyuk did not object to the district court's
jury found Pakhnyuk guilty of all charges. The district court
entered convictions, stayed execution of sentence for the
interference with privacy offense, and imposed 90 days in
jail for the alcohol offense. Pakhnyuk appeals from judgment
but challenges only the interference with privacy conviction
under Minn. Stat. § 609.746, subd. 1(e)(2).
conviction under Minn. Stat. § 609.746, subd. 1(a),
require evidence that a defendant entered another's
property "with the intent to intrude upon or interfere
with the privacy of a member of the household?"
sole issue on appeal contends that the evidence is
insufficient to support his conviction because, under the
relevant statute, the state needed to prove that he entered
his brother's property with the intent to interfere with
the privacy of a member of his brother's household, but
the state provided no evidence Pakhnyuk had such an intent.
Since Pakhnyuk's sufficiency-of-the-evidence challenge
involves determining whether his conduct met the statutory
definition of an offense, we are presented with an issue of
statutory interpretation, which we review de novo. See
State v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013).
resolving the issue before us, we first decide to address
Pakhnyuk's statutory interpretation issue, even though he
raised it for the first time on appeal, because it is
necessary in order to decide his sufficiency-of-the evidence
challenge. Next, we conclude that Minn. Stat. § 609.746,
subd. 1(a), is ambiguous after applying canons of
interpretation and analyzing the statutory language in light
of grammatical rules. Then, by relying on the canons of
statutory construction, we reject Pakhnyuk's position and
hold that the relevant statute does not require evidence of
intent at the time of entry onto the property of another.
This conclusion follows from the plain language of the former
statute, the minor alternations made by the legislature when
it adopted the current version of the statute, and relevant
caselaw suggesting that this construction of Minn. Stat.
§ 609.746, subd. 1(a), is consistent with the
legislature's intent to protect individual privacy.
We may address a statutory interpretation issue that Pakhnyuk
raised for the first time on appeal.
state argues that Pakhnyuk forfeited this issue because he
did not raise it at trial and because addressing the argument
on appeal would be "fundamentally unfair" to the
state. Pakhnyuk concedes that he did not explicitly raise
this issue during trial, but he argues this court must
interpret the relevant statute and determine the offense
elements in order to consider his sufficiency-of-the-evidence
this court will not consider legal issues that the parties
did not raise in the district court. Roby v. State,
547 N.W.2d 354, 357 (Minn. 1996). But the supreme court has
held that "it is often necessary to interpret a criminal
statute when evaluating an insufficiency-of-the-evidence
claim." State v. Vasko, 889 N.W.2d 551, 556
(Minn. 2017). Any "conviction based upon anything less
than 'proof beyond a reasonable doubt of every fact
necessary to constitute the crime' violates the Due
Process Clause of the Fifth Amendment." State v.
Clow, 600 N.W.2d 724, 726 (Minn.App. 1999), review
denied (Minn. Oct. 21, 1999) (quoting In re
Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)).
We conclude that Pakhnyuk may raise a statutory
interpretation issue for the first time on appeal because it
is necessary to interpret Minn. Stat. § 609.746, subd.
1(e)(2), when determining his sufficiency-of-the-evidence
Minn. Stat. § 609.746, subd. 1(a), is
Minn. Stat. § 609.746, subd. 1(e)(2), requires a
violation of Minn. Stat. § 609.746, subd. 1,
"against a minor under the age of 18, knowing or having
reason to know that the minor is present." The state
alleged that Pakhnyuk violated Minn. Stat. § 609.746,
subd. 1(a), ...