Felony HRO Violation Must be Intentional

A felony conviction for violation of a harassment restraining order (HRO) has to be based on conduct that was intentional.

The Minnesota Court of Appeals reversed and remanded a jury’s finding that Todd Bradley Gunderson was guilty of felony violation of a harassment restraining order in a decision filed February 6, 2012 on the basis that the jury was improperly instructed.

Gunderson’s mother obtained a Harassment Restraining Order (HRO) against him because of his chemical dependency issues. Gunderson would continually ask her for money, and his mother did not want to have anything to do with him until he got treatment. The HRO was for a two year period from February of 2009 to February of 2011. As part of the HRO, Gunderson was not to not harass his mother, have any contact with her, and was to stay away from her residence.

Gunderson’s mother’s home was on a ten-acre piece of property. On July 5, 2010, Gunderson was seen on the property in her detached garage which is at least 20 feet from the home. There is also a shed on the property, owned by Gunderson, and where he kept personal belongings. Gunderson’s mother was not home during the time he was on her property.

Gunderson admitted at trial that he was in the garage and shed on his mother’s property on July 5, 2010 to get some personal items from the shed. Gunderson testified that he thought that the HRO required only that he not contact his mother or go into her home. He said he was not aware that he HRO prevented him from accessing the garage or shed on her property.

Gunderson was charged with gross misdemeanor and felony violations of an HRO under Minn. Stat. § 609.748, subd. 6(c) and § 609.748, subd. 6(d)(1).

The law requires that to be guilty of a felony offense of violation of a harassment restraining order, the person must knowingly violate the order within 10 years of the first of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency. Minn. Stat. § 609.748, subd. 6(d)(1), emphasis added. Gunderson agreed that he had two or more previous HRO violations within 10 years of the July incident.

The jury was instructed by the district court that Gunderson was guilty of HRO if it was found that 1) an HRO was in place preventing him from contacting his mother; 2) Gunderson violated a term or condition of the HRO; 3) Gunderson knew of the HRO; and 4) Gunderson’s act took place on or about July 5, 2010, in Cass County. The jury found Gunderson guilty, and he appealed.

The Court of Appeals reversed the jury’s findings and remanded to district court for a new trial. The basis of the reversal and remand was that for a felony violation of an HRO, a person must intentionally violate a term or condition of the HRO. The jury was not instructed that they should also determine whether Gunderson knew he was violating the HRO when he was on his mother’s property. The Court of Appeals reasoned that the failure to instruct the jury that Gunderson was guilty only if he was found to have acted intentionally may have had a substantial impact on the jury’s findings. As such, the Court of Appeals determined that Gunderson was entitled to a new trial in which the jury would get proper instructions for the charged offenses.

A HRO can have long-term consequences. Failure to challenge a HRO will result in a granting of the HRO to the requesting party. A first-time violation of a HRO is a misdemeanor punishable by up to 90 days in jail, a $1,000 fine or both; a second-time violation within 10 years of the first is a gross misdemeanor punishable by up to 365 days in jail, a $3,000 fine or both; and third or more violation within 10 years of the first violation is punishable by up 5 years imprisonment, a $10,000 fine or both.

If you have been served with notice that someone is seeking a HRO against you, it is important that you contact an experienced Minneapolis Criminal Defense Lawyer right away. Ignoring a HRO can have undesirable penalties. Call Twin Cities Defense for a free consultation.