                         This opinion will be unpublished and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

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0467

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                  Gary Lee Hanson, Jr.,
                                       Appellant.

                               Filed January 30, 2017
                  Affirmed in part, reversed in part, and remanded
                                 Rodenberg, Judge

                           Cottonwood County District Court
                                File No. 17-CR-15-207

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Nick Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant Gary Lee Hanson, Jr., appeals from his convictions of one count of

second-degree burglary (theft of services), one count of second-degree burglary (stalking),
and one count of stalking, challenging the sufficiency of the evidence on all three counts.

The state concedes that the evidence is insufficient to support appellant’s conviction for

second-degree burglary (theft of services), but argues that there is sufficient evidence to

sustain the remaining two convictions. We affirm in part, reverse in part, and remand.

                                          FACTS

       Appellant and R.S. both lived at Perkins Creek Apartments in May 2015. R.S. did

not know appellant, although appellant claims that R.S. was an “acquaintance” from

“around town.” On May 5, appellant left a note on R.S.’s windshield wishing her a “Happy

Mother’s Day” and asking her to “stop on up, apartment 5.” He signed the note “Gary

Lee.” On May 8, appellant approached the apartment manager and asked her in which

apartment R.S. lived. The manager refused to tell appellant where R.S. lived, but agreed

to deliver a note from appellant to R.S. Appellant wrote a note saying “Stop by Ratchell

Gary Lee, Just thinking of you[.] Need to ask you a favor and still waiting for you to come

back [smiley face.] Gary Lee.” After appellant left, the manager called R.S. and R.S. said

that she did not know who appellant was, but that she recognized his name from the note

that had been left on her windshield days earlier.

       A third incident occurred approximately ten days later, when appellant approached

R.S. as she walked from her apartment to her car. Appellant handed R.S. a six-page letter

with multiple gifts, including flowers, a “princess electric toothbrush” and a stuffed

energizer bunny. R.S. took the gifts and note, and told appellant to “leave me alone.”

       The incident leading to the criminal complaint against appellant occurred on

May 20, 2015. R.S. returned to her apartment that morning and found that someone had


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entered while she was away. R.S. noticed that a door handle had been broken, a candle

was lit on her stove, bouquets of flowers and other gifts had been placed around her

apartment, and her social security card that had previously been missing was on her

nightstand. Someone had also cleaned her apartment, shampooed her carpets, moved her

furniture around, and turned on her T.V. and heat. R.S. called police, who arrived and

found appellant in the parking lot near R.S.’s apartment. Appellant admitted to having

been in R.S.’s apartment, and to having left the gifts and cleaned the apartment. He claimed

that he had permission to be there. R.S. testified that she never invited appellant into her

apartment and had not spoken with him since the previous incident when she asked him to

leave her alone.

       Police arrested appellant who was later charged with three counts: second-degree

burglary (theft of services), second-degree burglary (stalking), and stalking. At trial to a

jury, the state argued that appellant committed second-degree burglary in two ways. First,

it argued that appellant committed burglary (theft of services) by entering R.S.’s apartment

and using her electricity and heat without her permission. Second, it argued that appellant

committed burglary (stalking) by entering R.S.’s apartment and leaving her presents and

flowers, conduct which appellant knew or had reason to know would frighten R.S. Third,

the state argued that appellant committed the offense of stalking in the course of the four

incidents described above.

       The jury convicted appellant on all three counts. The district court sentenced

appellant for burglary (theft of services) and stalking, but did not sentence appellant for

burglary (stalking).


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       This appeal followed.

                                      DECISION

       I.     Sufficiency of the evidence for theft of services

       Appellant asks us to reverse his conviction of second-degree burglary (theft of

services), arguing that the evidence presented by the state at trial is not sufficient to prove

a theft of services. The state concedes the point, and agrees that we should reverse the

burglary (theft of services) conviction.

       Appellant presents his challenge as one concerning the sufficiency of the evidence,

arguing that his conduct did not meet the statutory definition of the charged offense. When

a sufficiency-of-the-evidence claim involves the question of whether the defendant’s

conduct meets the statutory definition of an offense, we are presented with a question of

statutory interpretation that we review de novo. State v. Hayes, 826 N.W.2d 799, 803

(Minn. 2013).

       Theft of services occurs when a person “obtains the services of another with the

intention of receiving those services without making the agreed or reasonably expected

payment of money or other consideration.” Minn. Stat. § 609.52, subd. 2(13) (2014).

“Services” do not include heating services or use of electricity. Id., subd. 1(9) (2014)

(quotation omitted). “Property,” on the other hand, is defined as “all forms of tangible

property . . . including . . . electricity, gas , . . . and heat supplied by pipe or conduit by

municipalities or public utility companies.” Id., subd. 1(1) (2014). The state’s theory was

that appellant committed theft of services by turning on R.S.’s heat and T.V. without

permission. Under the plain statutory language, and as the state now concedes, this could


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only be theft of property, and not theft of services. The charge was premised on a theft of

services having been committed. We therefore reverse appellant’s conviction of second-

degree burglary (theft of services).

       II.    Sufficiency of the evidence for stalking

       Appellant argues that there was insufficient evidence for the jury to find that he

committed the offense of stalking, because the evidence did not prove that he knew or had

reason to know that R.S. would become frightened by his attention. Specifically, appellant

argues that he had “no inkling that [R.S.] would not appreciate his interest, let alone become

frightened” by his notes. He also argues that his “misplaced belief that [R.S.] would

welcome his attention” when he broke into her apartment precludes a stalking conviction.

       A person is guilty of stalking when he engages “in conduct which the actor knows

or has reason to know would cause the victim under the circumstances to feel frightened,

threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of

the victim regardless of the relationship between the actor and victim.” Minn. Stat.

§ 609.749, subd. 1 (2014).1 “The test of whether words or phrases are threatening is the



1
 In 1996, the Minnesota Supreme Court interpreted a previous version of this statute, and
held stalking was a specific-intent crime. State v. Orsello, 554 N.W.2d 70, 76 (Minn.
1996), superseded by statute, 1997 Minn. Laws ch. 96, § 7, at 700. Shortly thereafter, the
Minnesota legislature amended the statute to add section 609.749, subdivision 1a,
providing that no proof of specific intent is required to convict a defendant of stalking.
1997 Minn. Laws ch. 96, § 7 at 700. Here, the state does not argue that appellant
specifically intended to cause R.S. to be frightened or intimidated. It argues only that
appellant knew or had reason to know that his conduct would be frightening to R.S. We
apply the plain language of section 609.749, subdivision 1, requiring that the appellant
“knew or had reason to know” that his conduct would cause R.S. to feel intimidated or
afraid. State v. Franks, 765 N.W.2d 68, 74-75 (Minn. 2009).

                                              5
context in which they are used.” Franks, 765 N.W.2d at 75. A person commits gross-

misdemeanor stalking if he “repeatedly mails or delivers or causes the delivery by any

means, including electronically, of letters, telegrams, messages, packages, . . . or any

communication made through any available technologies or other objects.” Minn. Stat.

§ 609.749, subd. 2(6) (2014). “[F]or purposes of section 609.749, subdivision 2(6),

repeatedly means more than once.” State v. Collins, 580 N.W.2d 36, 42 (Minn. App. 1998)

(quotation marks omitted), review denied (Minn. Jul. 16, 1998).

       The mental-state element of a crime is generally proved circumstantially. State v.

Davis, 656 N.W.2d 900, 905 (Minn. App. 2003), review denied (Minn. May 20, 2003). We

apply heightened scrutiny when reviewing the sufficiency of circumstantial evidence,

using a two-step analysis. State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn. 2010).

First, we identify the circumstances proved, deferring to the jury’s acceptance of evidence

that proved those circumstances, as well as the jury’s rejection of evidence that conflicted

with those circumstances. Id. at 473. Second, we “determine whether the circumstances

proved are consistent with guilt and inconsistent with any rational hypothesis except that

of guilt.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013) (quotations omitted). We

“examine independently the reasonableness of all inferences that might be drawn from the

circumstances proved; including the inferences consistent with a hypothesis other than

guilt.” Id. (quotations omitted). We will sustain a conviction if “the reasonable inferences

that can be drawn from the circumstances proved as a whole” are “consistent with the

hypothesis that the accused is guilty and inconsistent with any rational hypothesis except

that of guilt.” State v. Fox, 868 N.W.2d 206, 223 (Minn. 2015).


                                             6
         Because the jury found appellant guilty of stalking and of burglary with a predicate

offense of stalking, our analysis of the circumstances proved begins with deference to the

jury’s acceptance of evidence consistent with its verdict. Al-Naseer, 788 N.W.2d at 473.

Considered in that light, the evidence proves the following circumstances. Appellant left

a note on R.S.’s windshield on May 5, 2015, a point in time at which they did not know

one another. Appellant still had not met R.S. when, on May 8, he approached her apartment

manager and asked where R.S. lived, and then asked the manager to deliver a note that

said, “Just thinking of you[.] Need to ask you a favor and still waiting for you to come

back.”     Appellant’s first personal interaction with R.S. was on May 18, when he

approached her outside of her apartment and gave her a six-page letter and some gifts. His

letter stated that he does not “play games,” that he would like to have sex with R.S., and

that he knew about R.S.’s past relationships. On that occasion, R.S. directly requested

appellant to leave her alone. Two days later appellant entered R.S.’s apartment without

her knowledge or consent, cleaned it, shampooed the carpets, lit candles, rearranged the

living room, and left gifts and flowers for R.S. around the apartment.

         Appellant argues that his actions arose from a “misplaced belief” that his approaches

to R.S. would be welcomed and that he is therefore guilty of, at most, trespassing.

Although appellant claims that he and R.S. were acquaintances on May 5, we give no

weight to evidence the jury necessarily rejected in finding appellant guilty. Silvernail, 831

N.W.2d at 599. The jury rejected appellant’s testimony. The circumstances proved by the

state are that appellant repeatedly made unwelcome contact with R.S. and entered her

apartment unwelcomed and uninvited after R.S. told him, “leave me alone.”


                                               7
       Given the circumstances proved by the state, the evidence leaves room for no

reasonable inference other than that appellant knew or had reason to know that his actions

would make R.S. afraid. The letters appellant sent R.S. discussed his knowledge of

intimate details about her life. Appellant conveyed his feelings of sexual attraction towards

R.S., whom he had never met personally until this disturbing pattern of unsolicited

attention began. She told him to leave her alone, but he did not. In that context, the only

rational inference from the circumstances proved is that appellant knew or should have

known that his actions would cause R.S. to feel threatened or frightened.

       The evidence is sufficient to support appellant’s stalking conviction.

       III.   Second-degree burglary (stalking)

       Appellant argues that his conviction for second-degree burglary must also be

reversed because the state failed to prove the predicate crime of stalking. A person commits

second-degree burglary when he “enters a building without consent and commits a crime

while in the building.” Minn. Stat. § 609.582, subd. 2 (2014).

       As discussed above, the evidence is sufficient to support the jury’s verdict that

appellant entered R.S.’s apartment without her consent, and that he committed the predicate

offense of stalking while in her apartment. The evidence is sufficient to support appellant’s

conviction for second-degree burglary (stalking).

       IV.    Sentencing

       The district court correctly sentenced appellant for only one of the burglary counts

arising out of a single course of conduct. Minn. Stat. § 609.035, subd. 1 (2014). The

district court chose to sentence appellant on the burglary (theft of services) count. Because


                                             8
we reverse appellant’s conviction for that count but affirm his conviction of burglary

(stalking), we remand to the district court for resentencing.

       Affirmed in part, reversed in part, and remanded.




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