County District Court File No. 66-CR-17-294
Ellison, Attorney General, St. Paul, Minnesota; and John L.
Fossum, Rice County Attorney, Terence Swihart, Assistant
County Attorney, Faribault, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L.
Martin, Assistant Public Defender, St. Paul, Minnesota (for
Considered and decided by Bratvold, Presiding Judge;
Bjorkman, Judge; and Jesson, Judge.
Statutes § 609.749, subd. 2(4) (2016), which
criminalizes stalking by telephone, violates the First
Amendment to the United States Constitution because it is
facially overbroad, proscribes a substantial amount of
protected speech, and cannot be remedied by narrowing its
construction or severing language.
Jason Elliot Peterson challenges his judgments of conviction
for two counts of stalking under Minn. Stat. § 609.749,
subd. 2(4). The jury heard evidence that, in August and
September 2016 and January 2017, Peterson repeatedly called
and left voicemails for several employees of the Rice County
Sheriff's Department and Social Services Department,
complaining about his 2002 family-law case and causing those
employees to feel frightened.
appeal, Peterson contends that his convictions must be
reversed for three reasons: (1) Minn. Stat. § 609.749,
subd. 2(4), the stalking-by-telephone statute, is
unconstitutional under the First Amendment to the United
States Constitution; (2) the district court failed to obtain
a valid waiver of his right to counsel; and (3) the district
court deprived him of his right to testify by excluding his
testimony about his reasons for making the telephone calls
and leaving the voicemails. Peterson also argues his sentence
was improper and we must remand for resentencing. We
determine the stalking-by-telephone statute is substantially
overbroad in violation of the First Amendment; we therefore
reverse Peterson's judgments of conviction. We do not
reach the other three issues raised in Peterson's appeal.
August 29, 2016, Peterson telephoned the Rice County Sheriff
(the sheriff) and left a voicemail message. The sheriff
"immediately" returned Peterson's call, and
Peterson began "swearing and yelling," and
threatened to "arrest" him. The sheriff ended the
phone call and called Peterson two days later; in that call,
Peterson was "hostile" and again said that he would
"arrest" the sheriff. On September 6, 2016,
Peterson called an employee at the Minnesota Bureau of
Criminal Apprehension (BCA employee) with questions about
"arrest[ing]" the sheriff and, again, swore during
the call; the BCA employee reported Peterson's call to
September 23, 2016, a Rice County Sheriff's Deputy (the
deputy) served Peterson at his home with legal pleadings in
an unrelated civil case. After knocking on the door and
making contact with Peterson, the deputy explained he had
paperwork to drop off. Peterson became "very vocal"
and stated that "me and [the sheriff] are gonna be
butting heads pretty godd-mn hard if he doesn't get ahold
of me" and that "[the sheriff] can run but he
cannot f-cking hide." The deputy reported Peterson's
statements to the sheriff. The sheriff became concerned about
his own safety and his family's safety. He showed his
wife Peterson's photo so she could be "on extra
alert" and "take extra measures."
times during January 2017, particularly on January 19 and 20,
Peterson called and left voicemails with Rice County
employees. Peterson left six voicemails for a
child-protection social worker. In the voicemails, Peterson
stated, "I'm coming for your asses," and said
he would "call the lawyer" and "have [her] ass
arrested" if he did not receive a return phone call.
Peterson's voicemails had over 20 expletives. The
child-protection social worker testified that "each
[voicemail] increased with-was more threatening than the
January 2017, Peterson placed phone calls to three Rice
County employees. One employee testified that Peterson's
demeanor was "angry and threatening"; she felt
Peterson may come to her office and hurt someone. A second
employee testified Peterson was "extremely angry,"
"swearing a lot," stated he "would come into
[their] office and raise hell" if her supervisor
"didn't call [Peterson] back exactly at three"
and "he would kick the sheriff's ass and [another
employee's] as well." This employee became
"concerned for [her] coworkers and for [her]self."
A third employee testified that Peterson told her over the
phone "you won't know what day or time or when I may
come." The third employee testified she felt her
personal safety was at risk; she asked law enforcement to
escort her to and from work.
state charged Peterson with two counts of violating Minn.
Stat. § 609.749, subd. 2(4), stalking by repeatedly
making telephone calls on or about September 23, 2016 (count
one); and stalking by repeatedly making telephone calls on or
about January 26, 2017 (count two). Peterson moved to dismiss
the complaint, arguing count one lacked probable cause and
that Minn. Stat. § 609.749, subd. 2(4), was
constitutionally overbroad facially and as applied to him.
After a contested omnibus hearing, the district court
determined probable cause existed, the statute was
constitutional, and Peterson's conduct involved threats
not protected by the First Amendment.
a lawyer represented Peterson for many pretrial proceedings,
Peterson represented himself at the two-day jury trial. The
sheriff, the sheriff's wife, the deputy, the BCA
employee, and five Rice County employees testified at trial
to the facts summarized above. The state played for the jury
the six voicemails and the deputy's digital recording of
his encounter with Peterson.
testified in his own defense. Peterson admitted to
threatening the sheriff when the deputy visited his home and
stated that he intended to "shake [the sheriff] up a
little bit." When asked whether he placed the phone
calls and left the alleged voicemails, Peterson responded,
"Yeah, I'm surprised you don't have the other
ones." Peterson admitted he swore during the phone
calls, and stated he "stand[s] by" the January
voicemails. Peterson testified that "[he] did call [Rice
County employees] repeatedly" because he wanted "to
get answers . . . on what happened" in his 2002
family-law case, which resulted in changes to custody and
jury found Peterson guilty of both counts of stalking by
telephone under Minn. Stat. § 609.749, subd. 2(4). The
district court sentenced Peterson to 365 days in jail on each
count, consecutive, and stayed execution of his sentence on
count two. This appeal follows.
Minnesota Statutes section 609.749, subdivision 2(4),
facially overbroad in violation of the First Amendment and,
if so, is a judicial remedy available to correct the
argues that Minnesota Statutes section 609.749, subdivision
2(4), the stalking-by-telephone statute, unconstitutionally
restricts speech protected by the First Amendment. In his
reply brief, Peterson relies on the Minnesota Supreme
Court's recent decision in In re Welfare of
A.J.B., 929 N.W.2d 840 (Minn. 2019). A.J.B. was
filed after Peterson's conviction and after Peterson
appealed to this court. A.J.B. held that Minn. Stat.
§ 609.749, subd. 2(6) (2014), the stalking-by-mail
statute, prohibited ...