Colleen Marie Berg v. Michael Vincent Flaherty ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1743
Colleen Marie Berg, petitioner,
Respondent,
vs.
Michael Vincent Flaherty,
Appellant.
Filed June 13, 2016
Affirmed
Smith, Tracy, Judge
Dakota County District Court
File No. 19WS-CV-15-538
Kyle D. White, St. Paul, Minnesota (for respondent)
Samuel J. Edmunds, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Smith,
Tracy, Judge.
UNPUBLISHED OPINION
SMITH, TRACY, Judge
Appellant Michael Vincent Flaherty challenges the district court’s grant of a
harassment restraining order (HRO) to respondent Colleen Marie Berg for more than two
years. Because the record supports both the issuance of the HRO and the district court’s
finding that Flaherty violated a prior restraining order on two or more occasions, we
affirm.
FACTS
Flaherty and Berg were divorced in December 2012. During the divorce
proceeding, Berg obtained a restraining order against Flaherty. After the divorce was
finalized, she obtained an ex parte HRO and, following a hearing, an HRO against him.
According to Berg, Flaherty repeatedly violated these orders. Flaherty was charged in
four criminal cases and entered Alford pleas to one count of contempt of court for
willfully disobeying a court mandate and three counts of violating a restraining order.1
When the HRO was set to expire, Berg petitioned for a new HRO against Flaherty.
Berg requested a 2-year HRO or, if Flaherty requested a hearing, a 50-year HRO because
she had two or more prior HROs against Flaherty and Flaherty had violated the orders on
two or more occasions.
The district court granted an ex parte HRO, finding that there were reasonable
grounds to believe that Flaherty had (1) followed, pursued, or stalked Berg; (2) frightened
Berg; (3) taken pictures of Berg and posted them online without her permission; and
(4) sent harassing e-mails about Berg to third parties. Flaherty then requested a hearing.2
1
An Alford plea permits a defendant to plead guilty while maintaining innocence because
the record contains sufficient evidence to support a conviction. State v. Theis, 742
N.W.2d 643, 647 (Minn. 2007); see North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct.
160, 168 (1970).
2
In his statement of facts, Flaherty appears to challenge the fairness of the hearing,
stating that his “testimony was cut short,” that he was not allowed “to testify in the
narrative,” and that he was not allowed to offer a closing argument. But because Flaherty
2
Following the hearing, the district court granted Berg’s petition for an HRO,
finding that Flaherty had engaged in harassment of Berg by (1) appearing at church on
Wednesdays during Berg’s parenting time; (2) attending the children’s activities during
Berg’s parenting time; (3) engaging in threatening conduct toward Berg and her then-
fiancé at the parties’ daughter’s band concert; (4) sending inappropriate e-mails and text
messages to community members regarding Berg; and (5) posting a picture of Berg on
his Facebook page. The district court also found that Flaherty had “violated a prior or
existing restraining order on two or more occasions” and ordered the HRO to remain in
effect until September 5, 2022, the day after the parties’ twin children turn 19.
Flaherty appeals.3
makes no argument about these alleged facts in the argument section of his brief,
questions about the hearing procedure are not properly before this court. See In re
Application of Olson for Payment of Servs., 648 N.W.2d 226, 228 (Minn. 2002)
(explaining that “issues not argued in the briefs are deemed waived on appeal” and that
“the threshold is whether an argument was addressed in the argument portion of the
brief” (quotations omitted)). We note, however, that the record does not support
Flaherty’s assertions. The district court allowed Flaherty to introduce evidence and to
cross-examine Berg, urged Flaherty to testify because “we have all the time in the
world,” and asked Flaherty if there was “anything else that [he’d] like to tell [the court.]”
We can discern no error in the district court’s management of the hearing.
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Berg argues that Flaherty’s arguments are not properly before this court because he did
not make them before the district court. But Flaherty, acting pro se, challenged Berg’s
testimony and provided explanations for his behavior. He also challenged the evidence
of his prior violations, explaining that the complaints were “unright” and that he had
made Alford pleas. We conclude that Flaherty has not forfeited his arguments regarding
the sufficiency of the evidence for the HRO and the extension of the HRO beyond two
years.
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DECISION
I.
Flaherty challenges the sufficiency of the evidence for the HRO. We review the
district court’s grant of an HRO for an abuse of discretion, but we will reverse if the
issuance of the HRO is not supported by sufficient evidence. Kush v. Mathison, 683
N.W.2d 841, 843-44 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004). “A
district court’s findings of fact will not be set aside unless clearly erroneous, and due
regard is given to the district court’s opportunity to judge the credibility of witnesses.”
Id. “Findings of fact are clearly erroneous only if the reviewing court is left with the
definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer
Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).
A district court may issue an HRO if it finds “that there are reasonable grounds to
believe that the respondent has engaged in harassment.” Minn. Stat. § 609.748, subd.
5(b)(3) (2014). “Harassment” is defined in relevant part as “repeated incidents of
intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are
intended to have a substantial adverse effect on the safety, security, or privacy of another,
regardless of the relationship between the actor and the intended target.” Minn. Stat.
§ 609.748, subd. 1(a)(1) (2014). The statute “requires both objectively unreasonable
conduct or intent on the part of the harasser and an objectively reasonable belief on the
part of the person subject to harassing conduct.” Dunham v. Roer, 708 N.W.2d 552, 567
(Minn. App. 2006), review denied (Minn. Mar. 28, 2006).
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Flaherty argues that the five incidents the district court relied upon to issue the
HRO do not meet the statutory definition of harassment.
A. E-mails to Community Members
The district court found that Flaherty harassed Berg by sending e-mails and text
messages to community members regarding Berg and the parties’ divorce. The record
contains the relevant e-mails, which refer to Berg’s “current unhealthy male friend”;
discuss Berg’s “hormones”; allege that Berg is sleeping with her fiancé while the kids are
at her house; assert that the fiancé lured Berg to a tent “multiple times during the work
week” during the parties’ marriage; state that Berg “is not in a healthy place”; request
help getting Berg to attend marriage counseling even though the parties’ divorce was
already finalized; and request that the recipients not support Berg’s new relationship.
Despite the “inappropriate and highly personal information” disclosed, Flaherty
argues that he only intended to “communicate[] his viewpoints to members of their
mutual community” and “notify community members of what he believed to be
inappropriate conduct by the fiancé.” But Flaherty alleged intimate details about Berg’s
personal life and new relationship and described her as hormonal and “not in a healthy
place.” Characterizing these communications as “viewpoints” makes them no less
intrusive. We conclude that the record supports a finding that Flaherty’s conduct was
“objectively unreasonable.” See id.We also conclude that the record supports a finding that Berg’s belief that the
conduct was harassing was “objectively reasonable.” See id. Berg testified that she
believed that the messages invaded her privacy and interfered with her social
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relationships. In addition, Berg felt embarrassed when the e-mail recipients disclosed the
messages to her.
We conclude that the record amply supports the district court’s finding that
Flaherty’s inappropriate e-mails to community members had “a substantial adverse
effect” on Berg’s privacy. See Minn. Stat. § 609.748, subd. 1(a)(1).
B. Band-Concert Incident
In March 2015, Berg, her fiancé, and the parties’ son entered the school parking
lot to attend the parties’ daughter’s band concert. According to Berg, Flaherty pulled his
vehicle behind their car and blocked it in. Berg testified that Flaherty then repeatedly
threatened Berg’s fiancé, both in the parking lot and inside the school building. Flaherty,
on the other hand, testified that he only tried to give Berg’s fiancé “notification” that he
was not welcome at the concert. Although Flaherty did not threaten Berg and instead
“kept trying to evade” Berg to avoid violating the existing HRO, Berg was present for the
entire incident. Berg testified that the incident was “very stressful” and that she “was
frightened.”
The district court found that this incident constituted harassment because Flaherty
“engaged in hostile, threatening conduct toward [Berg] and her fiancé . . . both in the
parking lot and in the school building, thereby frightening [Berg.]”
Flaherty argues that the district court’s finding is clearly erroneous because he did
not direct his communications to Berg. We note that, to issue a new HRO, the district
court was only required to find “reasonable grounds to believe that [Flaherty] has
engaged in harassment.” See Minn. Stat. § 609.748, subd. 5(b)(3). Although Flaherty
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did not directly communicate with Berg, the district court found that his behavior had “a
substantial adverse effect” on Berg’s “safety, security, or privacy.” See id., subd. 1(a)(1).
In finding that the band-concert incident constituted harassment, the district court
necessarily found Berg’s testimony more credible. We give “due regard . . . to the district
court’s opportunity to judge the credibility of witnesses.” Kush, 683 N.W.2d at 843-44.
We conclude that the record supports a finding that Flaherty’s conduct at the band
concert was “objectively unreasonable” and that Berg’s belief as to harassing conduct
was “objectively reasonable.” See Dunham, 708 N.W.2d at 567. Flaherty blocked the
vehicle Berg was riding in; gestured aggressively; attempted to “give a notification” to
Berg’s fiancé that he was not welcome at the concert, even though there was no order
prohibiting the fiancé from being there; and continued “yelling” at Berg’s fiancé inside
the building. Berg was present throughout the incident. We conclude that the record
amply supports the district court’s finding that Flaherty’s behavior had “a substantial
adverse effect . . . on [Berg’s] safety, security, or privacy.” See Minn. Stat. § 609.748,
subd. 1(a)(1).
Harassment requires “repeated incidents.” Id. Because the record supports the
district court’s findings of two incidents, we conclude that the district court did not
clearly err in finding that Flaherty harassed Berg and we need not consider the district
court’s other findings in support of the HRO. Having found harassment, the district court
did not abuse its discretion by issuing the HRO.
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II.
Flaherty challenges the district court’s decision to issue the HRO for more than
two years. Normally, an HRO is granted “for a fixed period of not more than two years.”
Minn. Stat. § 609.748, subd. 5(b) (2014). But if “the petitioner has had two or more
previous restraining orders in effect against the same respondent or the respondent has
violated a prior or existing restraining order on two or more occasions, relief granted by
the restraining order may be for a period of up to 50 years.” Id.The district court found that Flaherty had “violated a prior or existing restraining
order on two or more occasions.” In making this finding, the district court took judicial
notice of Flaherty’s four criminal cases arising from his violations of prior HROs. The
district court did not abuse its discretion by taking judicial notice of those criminal files.
See Minn. R. Evid. 201 (addressing judicial notice); In re Zemple, 489 N.W.2d 818, 820
(Minn. App. 1992) (explaining that the district court did not abuse its discretion by taking
judicial notice of findings made in a previous proceeding).
But Flaherty argues that his criminal files cannot establish violations of prior or
existing restraining orders because he always maintained his innocence and only resolved
the charges through Alford pleas. In an Alford plea, a defendant pleads guilty while
maintaining his innocence. Theis, 742 N.W.2d at 647. The guilty plea must be supported
by “a strong factual basis,” and the defendant must agree that the state’s evidence is
sufficient to convict him. Id. at 649. Although Flaherty is correct that our record does
not include Flaherty’s plea colloquies, Flaherty makes no argument that his Alford pleas
were improper or that he failed to acknowledge that the state’s evidence in the four cases
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was sufficient to convict him. Because the district court accepted Flaherty’s Alford pleas
in the criminal cases, we can infer that Flaherty agreed that the evidence was sufficient to
convict him of violating the prior orders. See id. And because the evidence was
sufficient to support Flaherty’s criminal convictions, it was necessarily sufficient to allow
the district court in the current civil proceeding to find that Flaherty violated the prior
HROs. Compare State v. Her, 862 N.W.2d 692, 695 (Minn. 2015) (explaining that a
criminal conviction requires proof beyond a reasonable doubt), with Minn. Stat.
§ 609.748 (2014) (not identifying a standard of proof for HROs), and State by Humphrey
v. Alpine Air Prods., Inc., 500 N.W.2d 788, 790 (Minn. 1993) (stating that statutory
silence regarding a standard of proof “is regarded as a signal that the legislature intended
the preponderance of the evidence standard” to apply).
Flaherty also argues that the criminal files cannot establish violations because they
were “disposed of . . . with stays of adjudication” and no convictions were entered.
Flaherty is incorrect that a stay of adjudication is the same as a continuance for dismissal.
See State v. Strok, 786 N.W.2d 297, 301 (Minn. App. 2010) (explaining that a stay of
adjudication occurs after a defendant’s guilty plea or a finding of guilt and a continuance
for dismissal occurs before any determination of guilt). Moreover, the statute here does
not require evidence of prior convictions or sentences. Minn. Stat. § 609.748, subd. 5(b)
only requires the district court to find that “the respondent has violated a prior or existing
restraining order on two or more occasions.” The district court made such a finding. The
acceptance of Flaherty’s Alford pleas in four criminal cases provides ample evidence that
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Flaherty “violated a prior or existing restraining order on two or more occasions.” See
Minn. Stat. § 609.748, subd. 5(b).
We conclude that the district court did not abuse its discretion by taking judicial
notice of the four criminal cases against Flaherty and by concluding that Flaherty had
“violated a prior or existing restraining order on two or more occasions.” See id. The
district court therefore did not abuse its discretion by granting the HRO for more than
two years. See id.Affirmed.
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