State of Minnesota v. Lori Elaine Christensen

Minnesota Court of Appeals November 24, 2014

Opinion

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0067

State of Minnesota,
Respondent,

vs.

Lori Elaine Christensen,
Appellant.

Filed November 24, 2014
Reversed and remanded; motion denied
Johnson, Judge

Ramsey County District Court
File No. 62-CR-12-4130

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Peter Marker, Assistant County Attorney (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and

Klaphake, Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION

JOHNSON, Judge

Lori Elaine Christensen pleaded guilty to violating a harassment restraining order.

She later moved to withdraw her guilty plea, but the district court denied the motion. We

conclude that the guilty plea is invalid because there is not a sufficient factual basis for

the conclusion that Christensen violated the harassment restraining order. Therefore, we

reverse and remand.

FACTS

This appeal arises from Christensen’s pattern of harassment toward a neighboring

family in the city of White Bear Lake. Christensen lived across a cul-de-sac from the

family. Beginning in July 2009, the family made several reports to law enforcement that

Christensen intentionally targeted them with harassing conduct and messages. For

example, the family complained that Christensen posted large, hand-painted signs on her

garage that ridiculed the family, directed rude gestures toward the family, and yelled or

sung insults at the family.

In April 2010, the family obtained a harassment restraining order (HRO) against

Christensen, which was effective for two years. In February 2011, Christensen pleaded

guilty to two misdemeanor violations of this HRO. In October 2011, Christensen pleaded

guilty to one felony violation of this HRO.

In May 2012, the family obtained a second HRO against Christensen. On May 19,

2012, Christensen pointed a videocamera at the family’s house and recorded the outside

2
of the house, their front yard, and their vehicle. The family observed Christensen with

the videocamera and contacted police.

Three days later, the state charged Christensen with two counts of aggravated

stalking, in violation of

Minn. Stat. § 609.749

, subds. 4(b), 2(1), 2(2) (2012), and one

count of violating a restraining order, in violation of

Minn. Stat. § 609.748

, subd. 6(d)(1)

(2012).

In July 2013, Christensen pleaded guilty to the third count, violating the HRO.

During the plea hearing, she explained that she placed her videocamera on her front steps

to protect herself while she was mowing her front lawn. She admitted that the video-

recording included images of the neighboring family’s house, front yard, and vehicle.

In August 2013, before sentencing, Christensen moved to withdraw her guilty

plea. The district court denied the motion. Christensen appeals.

DECISION

I. Motion to Strike

Initially, we must resolve a procedural matter. After the state served and filed its

responsive brief, Christensen moved to strike the portion of the state’s appendix that

contains a copy of the May 2012 HRO that she was alleged to have violated. Christensen

also moved to strike the portions of the state’s responsive brief that refer to the May 2012

HRO. Christensen contends that the May 2012 HRO should not be part of the appellate

record because it was not part of the district court record. The state concedes that the

May 2012 HRO is not part of the district court record, but contends that this court should

3
take judicial notice of the order because it was issued in a related civil proceeding and

because the parties do not dispute the accuracy of the document.

“The documents filed in the trial court, the exhibits, and the transcript of the

proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ.

App. P. 110.01. In a criminal case, “The record on appeal consists of the papers filed in

the district court, the offered exhibits, and the transcript of the proceedings, if any.”

Minn. R. Crim. P. 28.02, subd. 8. An appellate court, however, may take judicial notice

of a document that is not part of the district court record. Dept. of Highways v.

Halvorson,

288 Minn. 424, 430

181 N.W.2d 473, 476

 (1970). Specifically, this court

may take judicial notice of a district court order that was issued in a related proceeding.

Smisek v. Commissioner of Pub. Safety,

400 N.W.2d 766, 768

 (Minn. App. 1987). We

may take judicial notice if the fact to be noticed is “not subject to reasonable dispute in

that it is either (1) generally known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Minn. R. Evid. 201.

       In this case, the May 2012 HRO is a district court order that was issued by the

same district court in a civil action in which Christensen and the family were parties. The

May 2012 HRO is referenced in the criminal complaint that commenced this criminal

action. The parties do not question the accuracy of the document that is appended to the

state’s brief. In the course of appellate review, this court has found the May 2012 HRO

to be useful in resolving the issues raised by the appeal. Thus, we will take judicial

notice of the HRO and deny Christensen’s motion to strike.


                                              4
                          II. Motion to Withdraw Guilty Plea

       Christensen argues that the district court erred by denying her motion to withdraw

her guilty plea.

       A defendant does not have an absolute right to withdraw a guilty plea. State v.

Raleigh,

778 N.W.2d 90, 93

 (Minn. 2010). Rather, a defendant may be entitled to

withdraw a guilty plea in two circumstances. First, the district court must allow a

defendant to withdraw a guilty plea at any time if “withdrawal is necessary to correct a

manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. Second, the district court may

allow a defendant to “withdraw a plea at any time before sentence if it is fair and just to

do so.”

Id.,

 subd. 2. Christensen relies on both of these provisions in arguing that the

district court erred by denying her motion. She first invokes the manifest-injustice

standard to argue that withdrawal is required on the ground that her guilty plea is invalid

because the record of the plea hearing does not contain a factual basis from which the

district court could conclude that she violated the May 2012 HRO.

       We begin by analyzing Christensen’s first argument. To satisfy the manifest-

injustice standard, Christensen must show that her guilty plea is invalid. See State v.

Theis,

742 N.W.2d 643, 646

 (Minn. 2007). For a guilty plea to be valid, it “must be

accurate, voluntary and intelligent.” State v. Ecker,

524 N.W.2d 712, 716

 (Minn. 1994).

As the supreme court has explained,

              The accuracy requirement protects the defendant from
              pleading guilty to a more serious offense than he or she could
              be properly convicted of at trial. The voluntariness
              requirement insures that the guilty plea is not in response to
              improper pressures or inducements; and the intelligent


                                            5
              requirement insures that the defendant understands the
              charges, his or her rights under the law, and the consequences
              of pleading guilty.

Alanis v. State,

583 N.W.2d 573, 577

 (Minn. 1998) (citations omitted). If a guilty plea

fails to meet any of these three requirements, the plea is invalid. Theis,

742 N.W.2d at 650

.

       Christensen’s first argument goes to the accuracy of her guilty plea. As a general

rule, a guilty plea is inaccurate if it is not supported by an adequate factual basis. Ecker,

524 N.W.2d at 716

. An adequate factual basis exists if there are “sufficient facts on the

record to support a conclusion that defendant’s conduct falls within the charge to which

[she] desires to plead guilty.” Munger v. State,

749 N.W.2d 335, 338

 (Minn. 2008)

(quotations omitted). This court applies a de novo standard of review to a determination

that a guilty plea is valid. Raleigh,

778 N.W.2d at 94

.

       Christensen pleaded guilty to violating a restraining order. The applicable statute

provides that a person is guilty of a felony if the person violates an HRO “within ten

years of the first of two or more previous qualified domestic violence-related offense

convictions.”

Minn. Stat. § 609.748

, subd. 6(d)(1). Christensen does not dispute that she

had the requisite prior convictions; she contends only that her conduct on May 19, 2012,

does not constitute a violation of the HRO. To establish that she is guilty of violating the

HRO, the factual record must show that Christensen knowingly violated the order.

Minn. Stat. § 609.748

, subd. 6(d); see also State v. Gunderson,

812 N.W.2d 156, 160

 (Minn.

App. 2012) (holding that “person acts knowingly” if she “is aware that it is practically




                                             6
certain that [her] conduct will cause such a result”), superseded by statute,

Minn. Stat. § 609.748

, subd. 6(d) (Supp. 2013).

In arguing that an adequate factual basis exists, the state relies on the following

provision of the May 2012 HRO:

The following conduct is a violation of this order if an Order
For Relief is granted: Any contact with the protected
person(s), direct or indirect, any visits to or phone calls to the
protected person(s), threats or assaultive behavior to the
protected person(s), damaging or stealing property belonging
to the protected person(s), breaking into and entering the
Petitioner’s or minor child’s residence, taking pictures of a
protected person without permission of the Petitioner . . . .

(Emphasis added.) The state contends that Christensen violated the highlighted provision

of the HRO because she video-recorded the family’s house, front yard, and vehicle.

Specifically, the state contends that Christensen indirectly contacted the family by video-

recording their real and personal property. At oral argument, the state conceded that

Christensen’s videocamera did not actually record any member of the family, and the

state disavowed any reliance on the provision that prohibited Christensen from “taking

pictures” of the family. Thus, the issue for this court is whether Christensen’s act of

video-recording the outside of the family’s house, front yard, and vehicle constitutes

indirect contact with one or more of the members of the family. If so, there is an

adequate factual basis for Christensen’s guilty plea; if not, there is not an adequate factual

basis for the plea.

In the context of an HRO or order for protection, “contact” with another person

means “‘[a] coming together or touching, as of objects or surfaces,’ ‘[t]he state or

7
condition of touching or of immediate proximity,’ or ‘[c]onnection or interaction;

communication.’” State v. Phipps,

820 N.W.2d 282, 286

 (Minn. App. 2012) (quoting

The American Heritage College Dictionary 299 (3d ed. 2000)). This court’s caselaw

recognizes that if an HRO prohibits “contact,” the person restrained by the HRO may not

cause a third person to act as an intermediary by engaging in contact with a protected

person. See State v. Egge,

611 N.W.2d 573, 575

 (Minn. App. 2000). By using the phrase

“direct or indirect” in the HRO in this case, the issuing district court made it very clear

that Christensen was prohibited from engaging in indirect contact with any member of

the neighboring family. The ordinary meaning of the word “indirect” is “[d]iverging

from a direct course; roundabout” or “[n]ot proceeding straight to the point or object.”

The American Heritage Dictionary of the English Language 894 (5th ed. 2011). By

prohibiting Christensen from engaging in direct or indirect contact with the family, the

May 2012 HRO prohibited her from making direct contact with the family and from

causing a third person to make contact with the family. See Hunter v. State,

883 N.E.2d 1161, 1162

 (Ind. 2008) (interpreting probation condition prohibiting “indirect contact . . .

via third parties”).

       At the plea hearing, Christensen admitted only that she video-recorded the

neighboring family’s house, yard, and vehicle from her own front yard. The record of the

plea hearing does not indicate that, in doing so, Christensen video-recorded any member

of the family, was in the immediate proximity of any member of the family, or engaged

in any interaction or communication with any member of the family. See Phipps,

820 N.W.2d at 286

.         Likewise, the record of the plea hearing does not indicate that


                                             8
Christensen caused a third person to engage in contact with a member of the family. See

Egge,

611 N.W.2d at 575

. Thus, the record of the plea hearing does not contain a factual

basis to support the conclusion that Christensen engaged in direct contact or indirect

contact with any member of the family.

      The state relies on Egge and contends that Christensen violated the May 2012

HRO by instigating or initiating contact with the family via her videocamera. At first

blush, this contention appears to suggest that Christensen violated the May 2012 HRO by

provoking the family into contacting Christensen. But this court’s opinion in Egge used

the words “instigate” and “initiate” in the sense of causing a third person to contact a

protected person. See

611 N.W.2d at 575

. In other words, the Egge case is simply an

example of prohibited indirect contact. See

id.

 The Egge opinion does not stand for the

proposition that an HRO prohibiting indirect contact forbids a restricted person from

provoking a protected person into making contact with the restricted person.

      The state further contends that Christensen made indirect contact with the family

by coming “in close proximity to a person or persons protected by a court order.” For

this contention, the state relies on an opinion of the United States Court of Appeals for

the Eighth Circuit in Ulrich v. Pope Cnty.,

715 F.3d 1054

 (8th Cir. 2013), which held that

“indirect contact can occur when a defendant knowingly comes in close proximity to a

person or persons protected by a court order.”

Id. at 1059

. We note that the issue

presented to the Ulrich court was different from the issue in this case. The plaintiff in

Ulrich alleged a civil claim under

42 U.S.C. § 1983

 (2012) against two deputies who

arrested him for violating an HRO, and the issue on appeal was whether the deputies had


                                            9
“arguable probable cause” to arrest him so as to obtain the benefit of the qualified

immunity doctrine.

Id. at 1058-59

. Furthermore, the Ulrich opinion is not binding on

this court. See Jendro v. Honeywell, Inc.,

392 N.W.2d 688

, 691 n.1 (Minn. App. 1986),

review denied (Minn. Nov. 19, 1986). More importantly, the facts of Ulrich indicate a

closer proximity between the parties than the facts of this case. The plaintiff in Ulrich

intended to make visual contact with one protected person at a small public event and

knew that another protected person also would be present. Id. at 1060. In this case,

however, Christensen remained on her own property at all times and neither saw nor

video-recorded any member of the neighboring family. Thus, if we were to apply Ulrich,

we would conclude that the facts to which Christensen admitted at the plea hearing do not

support the conclusion that Christensen engaged in indirect contact by being in close

proximity to the family.

       As stated above, a guilty plea is inaccurate if it is not supported by an adequate

factual basis. Munger,

749 N.W.2d at 337-38

; Ecker,

524 N.W.2d at 716

. Our review of

the factual record of Christensen’s plea hearing, in light of the parties’ arguments, leads

us to conclude that there is not an adequate factual basis to support the conclusion that

Christensen violated the HRO. Thus, Christensen’s guilty plea is invalid, and the district

court erred by denying her motion to withdraw the plea pursuant to the manifest-injustice

standard. See Minn. R. Crim. P. 15.05, subd. 1. Therefore, we reverse Christensen’s

conviction and remand the matter to the district court for withdrawal of Christensen’s

guilty plea and for further proceedings.




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       In her appellate brief, Christensen makes three additional arguments. She argues

that the district court erred by denying her motion to withdraw her guilty plea pursuant to

the fair-and-just standard, see Minn. R. Crim. P. 15.05, subd. 2; that she received

ineffective assistance of counsel in connection with her plea-withdrawal proceedings; and

that the district court erred by imposing a probationary sentence consecutively with a

previously imposed probationary sentence.           Because we have concluded that

Christensen’s guilty plea is invalid based on her primary argument and that she is entitled

to withdraw her plea, we need not address Christensen’s other arguments. See Theis,

742 N.W.2d at 650-51

.

       Reversed and remanded; motion denied.




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Reference

Status: Unpublished