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State v. Pakhnyuk

Court of Appeals of Minnesota

January 8, 2018

State of Minnesota, Respondent,
v.
Fedor Pakhnyuk, Appellant.

         Scott County District Court File No. 70-CR-12-23227

          Lori 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 (for appellant)

          Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold, Judge.

         SYLLABUS

         A 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.

          OPINION

          BRATVOLD, JUDGE

         On 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.

         FACTS

         Pakhnyuk, 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.

         Five 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 Pakhnyuk.

         The 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. 1(3) (2010).

         During 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 instructions.

         The 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).

         ISSUE

         Does a 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?"

         ANALYSIS

         Pakhnyuk's 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).

         In 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.

         A. We may address a statutory interpretation issue that Pakhnyuk raised for the first time on appeal.

         The 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 challenge.

         Generally, 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 challenge.

         B. Minn. Stat. § 609.746, subd. 1(a), is ambiguous.

         Violating 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), ...


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