1. To: Kate Adams
From: Henry Abel (Paralegal)
Re: Carl Malone Case
Date: March 26, 2015
Facts
Carl misses his ex-girlfriend Sally. He liked to think that she missed him as well even
though they had not spoken since the break-up. Over the course of a couple days he tried to
initiate conversation with her via cell phone call. There is no answer from Sally, even to tell Carl
to stop calling her. He becomes concerned about what is going on since Sally always carries her
phone with her. Carl keeps trying every 15 minutes, no answer. Carl comes home from work to a
police officer who advises Carl that Sally has filed a complaint against him for stalking. Carl is
charged with stalking under Minnesota Statute 609.749, subdivision 2.
Issues
1. Is Carl guilty of gross misdemeanor stalking under Minnesota Statute 609.749?
2. Is there a weakness in the state’s case concerning the definition of stalking?
Answers
1. Carl is guilty under Minn. Stat 609.749 Subd. 2 granted he makes telephone calls
deliberately to harass Sally.
2. Yes there is a weakness in the state’s case against Carl because the definition of stalking
in Minnesota requires the acting party to know or have reason to know that the conduct
will make the victim feel frightened, threatened, oppressed, persecuted or intimidated.
The burden will be on the state to prove that Carl’s conduct caused Sally to feel any of
the previously mentioned feelings. Whether or not they previously dated is irrelevant.
Reasoning
Based on the facts that have been presented in this case it is evident that Carl was not
stalking his ex-girlfriend Sally making phone calls to her. The definition of stalking under Minn.
Stat 609.749 Subd. 1states that: “As used in this section, "stalking" means to engage 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.” In Minn. Stat
609.749 Subd. 2 (1), (2), and (5) “a person is guilty of gross misdemeanor stalking if they follow,
pursue, monitor someone and repeatedly make telephone calls with making the phone of another
to ring whether or not conversation ensues.”
Carl was trying to communicate with Sally and was receiving no response. He was
concerned about her because she wasn’t answering the phone so he kept trying to get a hold of

2. her. In order for Carl to meet the requirements in Minn. Stat. 609.749 Subd. 2, he must satisfy
the definition of stalker in Subd. 1. Per the facts in this case there is no sworn statement or
affidavit from Sally to prove that Carl posed any credible threat to her. This being the legislative
intent behind the definition provided in Minn Stat. 609.749 Subd. 1. Sally merely filed a
complaint citing Minn. Stat. 609.749 Subd. 2, because of the cell phone calls.
The burden here will be on the prosecution to prove that Carl Malone posed any kind of
threat to Sally to indicate that she in any way felt frightened, threatened, oppressed, persecuted,
or intimidated. That he was her ex-boyfriend and that she didn’t want to talk to him anymore will
not be enough to prove that Carl met the definition of stalking.
In State v. Pegelow 809 N.W.2d 245 (2012) the defendant appealed his gross
misdemeanor stalking conviction due to insufficient evidence to prove that he committed a crime
under Minn. Stat. 609.749 Subdiv. 2. (1). The Court of Appeals held that there was insufficient
evidence to support the defendant’s conviction.
It is true that Carl was making repeated phone calls to Sally but if that is all the
prosecution has in order to prove that Carl was a credible threat to Sally under Minn Stat.
609.749 then this is a weak case against Mr. Malone. In order to satisfy Subdivision 2 under
609.749, the defendant must meet the vague requirements in Subdivision 1.
In addition under Minn Stat. 609.749 Subdiv. 7 there is one exception: Conduct is not a
crime under this section if it is performed under terms of a valid license, to ensure compliance
with a court order, or to carry out a specific lawful commercial purpose or employment duty, is
authorized or required by a valid contract, or is authorized, required, or protected by state,
federal, or tribal law or the state, federal, or tribal constitutions.
Subdivision 2, clause (2), does not impair the right of any individual or group to engage
in speech protected by the federal, state, or tribal constitutions, or federal, state, or tribal law,
including peaceful and lawful handbilling and picketing.”
He does not meet the definition of stalking as defined in Minn. Stat. 609.749 Subdiv. 1. If
he does not meet the definition under this section then he cannot be charged under Minn. Stat.
609.749 Subdiv. 2. Additionally since his conduct of communication to Sally did not include any
credible threat to Sally and with no available affidavit stating the reaction of required in Minn.
Stat. 609.749 then Carl Malone’s conduct is an exception in this case with his rights under the
constitution overriding state law and upon review or appeal is unlikely he will be convicted. As
in Pegelow the lack of evidence also will be a controlling factor in determining guilt because
there was no evidence of a threat, or reaction of Sally that resulted from the phone calls.
Reasonable interpretation of this portion would conclude that cell phone communication
is constitutionally protected free speech under the First Amendment (U.S. Const. amend 1) as
long as it does not involve a specific threat, threat of physical violence, obscenity, or child
pornography. In this case there exists either little or no evidence that Carl’s phone calls involved
any specific threat, threat of physical violence, obscenity, or child pornography.

3. In taking this case we will be able to argue that Carl was acting within his constitutional
rights by using his phone to communicate with Sally because he was concerned about her. He
was not posing a threat to Sally either physically or mentally. Because of this he did not meet
Minnesota’s definition of stalking in Minn. Stat. 609.749 Subd. 1. The burden of the state,
whether we take this case or not is going to be to prove that Sally felt threatened, oppressed, or
intimidated. However, the language of Minn. Stat. 609.749 Subd. 2 is quite clear and that is the
basis for the state’s case against Carl. The burden for us will be to prove that Carl’s repeated
phone calls to Sally, despite his intent, were not stalking.
Conclusion
Carl had reason to believe that something bad had happened to Sally. It is true that the
state will say that he made repeated phone calls to Sally and that his intent does not have to be
proved. However, the definition of stalking under Minnesota law is clear in that the defendant
must have reason to believe that the conduct will cause the victim to feel frightened, threatened,
oppressed, or intimidated. He was trying to reach her using the basic phone call. She did not
answer so he kept trying to reach her creating no threat to her safety or privacy. Carl was acting
within his constitutional rights of free speech.