State v. Weldon

State of Minnesota, Respondent, v. Michael Robert Weldon, Appellant.

A16-0533

STATE OF MINNESOTA IN COURT OF APPEALS

June 12, 2017

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Reversed and remanded

Johnson, Judge

Concurring specially, Bjorkman, Judge

Olmsted County District Court

File No. 55-CR-15-3248

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Randall, Judge.^*

UNPUBLISHED OPINION

JOHNSON, Judge

An Olmsted County jury found Michael Robert Weldon guilty of violating a domestic-abuse no-contact order. The statute setting forth the offense requires proof beyond a reasonable doubt that a defendant knew of the existence of the order. The statute also defines the word "know" to mean that a person "believes that the specified fact exists." Weldon argues on appeal that (1) the district court erred by limiting his testimony as to whether he believed that the domestic-abuse no-contact order was in effect, (2) the district court erred by declining to instruct the jury on the statutory definition of the word "know," and (3) the prosecutor engaged in misconduct by misstating the law in closing argument. With respect to the first issue, we conclude that the district court erred in its evidentiary ruling, but we also conclude that the error is harmless. With respect to the second and third issues, we conclude that the district court erred in its jury instructions and that the prosecutor misstated the law in closing arguments. Therefore, we reverse and remand for a new trial.

FACTS

Weldon and P.B. have been married since 2004. On February 17, 2015, they had a physical altercation at their residence. P.B. called the police, who arrested Weldon.

The next day, the state charged Weldon with one count of domestic assault, in violation of Minn. Stat. § 609.2242, subd. 2 (2014). At Weldon's first appearance on February 19, 2015, the district court issued a domestic-abuse no-contact order (DANCO) that prohibited Weldon from contacting P.B.

On March 27, 2015, Weldon pleaded guilty to the domestic-assault charge. At the plea hearing, the district court advised Weldon that the DANCO would remain in effect. The district court also said to the prosecutor, "[I]f you hear something differently on that, that can be addressed in a letter to the Court."

On May 12, 2015, the district court received a letter that was handwritten by P.B. The letter was undated and was not addressed to any particular person. In the letter, P.B. identified herself as Weldon's wife and wrote: "I would like to request DANCO be lifted—ASAP! Thank-you—questions please feel free to contact me! . . . Defendant is Michael Robert Weldon. Please do this ASAP & notify me at above phone #."

On May 17, 2015, law-enforcement officers received a report of an argument at Weldon's and P.B.'s residence. An Olmsted County Deputy Sheriff responded to the report. Before arriving, the deputy learned that a DANCO prohibited Weldon from having contact with P.B. After arriving at the residence and speaking with Weldon and P.B., the deputy arrested Weldon.

The next day, the state charged Weldon with one count of a felony violation of a DANCO, in violation of Minn. Stat. § 629.75, subd. 2(d)(1) (2014). The state later amended the complaint to allege three counts of felony violations of a DANCO. Count 1 is based on an allegation that Weldon had contact with P.B. between May 1 and May 11, 2015. Count 2 is based on an allegation that Weldon had contact with P.B. between May 12 and May 16, 2015. Count 3 is based on an allegation that Weldon had contact with P.B. on May 17, 2015.

The three DANCO-violation charges were tried to a jury on three days in November 2015. The parties stipulated that the DANCO existed on the dates that Weldon was alleged to have contacted P.B. and that Weldon had two or more qualifying prior offenses, which enhanced the charges to felonies. The only disputed issue at trial was whether Weldon knew of the existence of the DANCO at the time of the alleged offenses.

The state called two witnesses: first, the deputy who arrested Weldon on May 17 and, second, P.B. The deputy testified that when he arrived at P.B.'s and Weldon's residence on May 17, P.B. told him that Weldon lived in the home. The deputy also testified that P.B. may have told him that a DANCO prohibited Weldon from having contact with her.

P.B. testified as follows: Weldon cannot read because of a permanent vision impairment, so he relies on her to read documents aloud to him. Before Weldon's first appearance on the underlying domestic-assault charge, she told a victim advocate that she wished to maintain contact with Weldon, but Weldon nonetheless moved out after the district court issued the DANCO. After Weldon's first appearance on the underlying domestic-assault charge, she wrote a letter to the county attorney in which she asked that the DANCO be lifted. She does not remember when she wrote the letter, except that she sent it approximately two weeks after writing it. She does not recall whether she mailed the letter or hand-delivered it to the county attorney. After sending the letter, she did not appear in court and did not have any communication with the district court. In late April 2015, she told Weldon about the letter and "told him that he was welcome to come home."Weldon returned home approximately two or three weeks before he was arrested on May 17. P.B. suffers from Wernicke's disease, which impairs her memory.

The state's evidence included several exhibits, including the DANCO that was issued by the district court on February 19, an amended DANCO issued by the district court on March 27, P.B.'s handwritten letter requesting that the DANCO be lifted, and audio-recordings of the pre-trial hearings on February 19 and March 27.

In the defense case, Weldon testified as follows: He understood that the district court had issued a DANCO, and he understood that the DANCO prohibited him from contacting P.B. Consequently, he did not live with P.B. and had no contact with her after the district court issued the DANCO. Because of the district court's comments at the March 27 hearing, he believed that the DANCO could be lifted by making a request to the county attorney's office. He typically relies on P.B. to read his written correspondence because of his vision impairment. On a date he cannot remember, P.B. called him and told him that she had written a letter and that "it was taken care of, and . . . I could come home." P.B. read the letter to him over the telephone. He did not receive any written communication from the district court saying that the DANCO had been cancelled. He does not remember when he moved back into the home. He was surprised when he was arrested on May 17 because he believed that the DANCO had been cancelled. Weldon did not call any other witnesses.

The jury found Weldon guilty on all three counts. The district court pronounced a sentence of 18 months of imprisonment on count 3, which concerned Weldon's contact with P.B. on May 17, but stayed imposition of the sentence for five years and placedWeldon on probation. The district court dismissed counts 1 and 2 without an adjudication. Weldon appeals.

DECISION

Weldon argues that he should receive a new trial for three reasons: (1) the district court erred by excluding some of his testimony as to whether he believed in May 2015 that the DANCO was in effect, (2) the district court erred by not instructing the jury on the statutory definition of the word "knows," and (3) the prosecutor engaged in misconduct by misstating the law in closing argument.¹

Weldon's three arguments are inter-related. Each argument depends on the meaning of the statute that sets forth the offense of which he was convicted. The statute provides that a person commits a crime if he "knows of the existence of a domestic abuse no contact order issued against the person and violates the order." Minn. Stat. § 629.75, subd. 2(b) (2014). In State v. Watkins, 840 N.W.2d 21 (Minn. 2013), the supreme court interpreted aprior version of the statute, which provided that, in a felony DANCO-violation prosecution, the state was required to prove that the defendant knew of the order and knowingly violated the order. Id. at 25 n.2 (citing Minn. Stat. § 629.75, subd. 2(d) (2012)). The supreme court concluded that, to knowingly violate a DANCO, a defendant must "perceive directly" that his contact violates a DANCO and that a defendant's "reasonable belief that his contact did not violate the DANCO could negate the mental state of the charged offense." Id. at 29. Shortly after Watkins, the legislature amended the statute by deleting the word "knowingly." 2013 Minn. Laws 203 ch. 47, § 5, at 207-08. As a result, the state no longer must prove that a defendant knowingly violated a DANCO. See id. But the state still must prove that a defendant knew of the existence of a DANCO and violated it. See Minn. Stat. § 629.75, subd. 2(b) (2014).

Weldon's theory at trial was that he did not know of the existence of the DANCO because, even though he knew that it had been issued, he believed that it had been cancelled in some way. In opening statements, his attorney stated, "At the end of the day, this case [is] about what Mr. Weldon knew, or what he thought he knew, and why he thought it." During the evidentiary phase of the case, Weldon introduced evidence (as described above) that P.B. told him that she had written a letter to the county attorney to ask that the DANCO be cancelled and that Weldon believed that her letter caused the DANCO to be cancelled. In closing argument, Weldon's trial attorney...