State v. Pakhnyuk

906 N.W.2d 571

STATE of Minnesota, Respondent,

v.Fedor PAKHNYUK, Appellant.

A17-0474

Court of Appeals of Minnesota.

Filed January 8, 2018

Review Granted March 20, 2018

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.

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, 25 L.Ed.2d 368 (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), which describes surreptitious interference with the privacy of another, as follows:

(a) A person is guilty of a gross misdemeanor who:

(1) enters upon another's property;

(2) surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or place of dwelling of another; and

(3) does so with intent to intrude upon or interfere with the privacy of a member of the household.

For ease of reference, we will refer to Minn. Stat. § 609.746, subd. 1(a), as "subdivision 1(a)." Subdivision 1(a) contains three elements, which we will refer to as the "entry" element (clause 1), the "gazing" element (clause 2), and the "intent" element (clause 3).

Our purpose in interpreting statutes "is to ascertain and effectuate the intention of the legislature." Minn. Stat. § 645.16 (2016) ; see also State v. Struzyk , 869 N.W.2d 280, 284 (Minn. 2015). In doing so, we give the "statute's words and phrases their plain and ordinary meaning." State v. Peck , 773 N.W.2d 768, 772 (Minn. 2009). To determine the plain meaning of statutory language, we may refer to canons of interpretation, such as common usage, dictionary definitions, and grammatical rules. Minn. Stat. § 645.08 (2016) ; see also Struzyk , 869 N.W.2d at 287 (applying rules of grammar to interpret plain language of statute). If the "words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit." Minn. Stat. § 645.16 ; State v. Riggs , 865 N.W.2d 679, 682 (Minn. 2015). If, however, a statute is ambiguous, we will consider canons of construction to ascertain the legislature's intent while construing the meaning of the statute. A statute is ambiguous if it is subject to more than one reasonable interpretation. State v. Mauer , 741 N.W.2d 107, 111 (Minn. 2007). We review issues of statutory interpretation de novo. Peck , 773 N.W.2d at 771 (Minn. 2009).

The parties disagree regarding to what "does so" refers in the intent element of subdivision 1(a). Pakhnyuk argues that "does so" refers to both the entry and gazing elements. In other words, according to Pakhnyuk, a conviction under subdivision 1(a) requires evidence that the defendant "enter[ed] upon another's property" with the "intent to intrude upon or interfere with the privacy of a member of the household," and that the defendant "surreptitiously gazed" in the window of another's house with the same intent. The state argues that "does so" refers only to the gazing element.

Briefly restated, the issue is not the meaning of subdivision 1(a)'s words, but the relationship of the words to one another. Accordingly, to properly interpret ...