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    Debra Ali DUNHAM, Appellant, v. Karen P. ROER, Respondent.
    No. A05-421.
    Court of Appeals of Minnesota.
    Jan. 10, 2006.

      Jill E. Clark, Golden Valley, MN, for appellant.
    Stephen O. Plunkett, Shanda K. Pearson, Rider Bennett, LLP, Minneapolis, MN, for respondent.
    Considered and decided by Chief Judge TOUSSAINT, Presiding Judge; DIETZEN, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DIETZEN, Judge.

Appellant challenges the district court order and judgment granting summary judgment to respondent and dismissing appellant’s claims (a) that the harassment definition in Minn.Stat. § 609.748, subd. 1(a)(1) (harassment statute) is facially unconstitutional; and (b) for malicious prosecution, abuse of process, and defamation. Appellant contends that the harassment statute is facially overbroad, void for vagueness, and that genuine issues of material fact preclude summary judgment on her other claims. Because we find that the harassment statute is not facially over-broad or void for vagueness; and that there are no genuine issues of material fact that preclude summary judgment, we affirm.

PACTS

Both appellant Debra Ali Dunham and respondent Karen R. Roer were members of the Wayzata Country Club (WCC). In January 2001, appellant discovered that respondent was having an extramarital affair with her husband. Appellant confronted respondent, who denied the accusation. Because respondent claimed that appellant engaged in various forms of harassment, including giving her the finger at the WCC, respondent sought and obtained an ex parte restraining order against appellant in June 2001. The ex parte restraining order was served on appellant shortly after it was issued.

Respondent asserts that two days after the ex parte restraining order was issued, appellant again gave respondent “the finger” on the WCC golf course. Later that evening, a confrontation occurred between the parties at the WCC, during which appellant stated that she did not know “how [respondent could] show [her] face [at the WCC]” and that “[appellant’s] daughter knows what [respondent] did.” Respondent summoned the police, who reviewed the restraining order, spoke to the parties and others, and then arrested appellant for violating the ex parte restraining order.

Following an evidentiary hearing, the district court issued a two-year restraining order against appellant on August 29, 2001. The order was based on findings that: (a) appellant called respondent’s home eight or nine times in one evening and told respondent’s husband about the affair and their membership at the WCC; (b) respondent’s lawyer sent letters to appellant’s attorney asking her to stop contacting respondent and her husband; and (c) appellant engaged in specific acts of harassment against respondent on five different dates in May and June 2001. The August 2001 restraining order prohibited appellant from harassing respondent by engaging in “[a]ny repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of [respondent].” The order specifically prohibited appellant from having any direct contact with respondent “in person, by telephone, or by other means or persons.” Appellant did not appeal the issuance of the restraining order.

Respondent asserts that appellant approached her at the WCC in June 2002 and made offensive comments, including calling her a “slut.” Appellant adamantly denies that she used the word. Police interviewed the parties and other witnesses and arrested appellant for violating the August 2001 restraining order. A criminal complaint was issued against appellant, and the matter proceeded to trial. Contending that respondent caused the criminal prosecution, appellant presented evidence that the prosecutor spoke to respondent on various occasions concerning the alleged violations. Respondent admitted that she spoke with the prosecutor, but stated that she did not request that appellant be prosecuted. After a jury trial, appellant was acquitted of those charges. Appellant also alleges that respondent wrongfully accused appellant of “giving her the finger” on February 2, 2002 and April 8, 2002, that a summons was improperly issued by the City of Wayzata assistant prosecutor, and that the charges against appellant were later dismissed.

Appellant also contends that respondent was responsible for her membership being terminated at the WCC. Specifically, the WCC board terminated the Dun-hams’ family membership at the WCC in September 2002. Respondent testified by deposition that prior to the termination, she was unaware that the WCC was investigating the Dunhams’ membership. Appellant’s husband, Audie Dunham, acknowledged that appellant had been reprimanded previously for violating WCC rules and that the WCC president stated to him that the decision to expel the family was based on (a) appellant’s objections to the WCC dress code, (b) appellant’s conduct towards respondent, and (e) other violations of WCC rules.

In July 2003, respondent petitioned to extend the August 2001 restraining order for two more years. After an evidentia-ry hearing, the district court “extended” the restraining order for one year. The order included specific findings that respondent’s testimony was credible and appellant’s testimony was not credible. Respondent had alleged four incidents of harassment in support of her motion to extend the order. But the court’s order relied on a single incident, which occurred at respondent’s church on May 7, 2003. On appeal, this court held that (a) the district court did not have authority to “extend” a restraining order beyond two years; and (b) the order was insufficient as a new or initial restraining order because it relied on a single incident of harassment, rather than on repeated incidents, as required by statute. Roer v. Dunham, 682 N.W.2d 179, 182 (Minn. App.2004) (applying Minn.Stat. § 609.748, subd. 1(a)(1) (2002)). There was no allegation of physical or sexual assault. Accordingly, respondent was required to establish the existence of “repeated incidents.” Because only one incident was found by the court to have occurred, we reversed the order in an opinion filed on June 29, 2004. Roer, 682 N.W.2d at 182.

Appellant alleges that respondent told others that appellant had committed criminal acts and that she was violent. Appellant relies primarily on a letter dated May 22, 2002 from respondent to the WCC. In the letter, respondent complains that mouthwash was pumped into her locker damaging property and that her nameplate was removed from the locker. Respondent’s letter acknowledged that “no one ha[d] been seen perpetrating these acts,” but that the acts were “consistent with the harassing behavior [respondent had] experienced in the community and at the club by [appellant].”

Current Litigation

In May 2003, appellant sued respondent for malicious prosecution, abuse of process, defamation, and other claims. Upon stipulation of the parties, a scheduling order was issued, which set a discovery deadline of March 10, 2004. There were several disputes over discovery issues. First, respondent argued that appellant should be allowed to attend respondent’s deposition. The district court granted a protective order that precluded appellant from attending respondent’s deposition, but the order allowed appellant to listen to the deposition by telephone in another room. Second, appellant sought to depose the city-prosecutor in connection with her claims of malicious prosecution. But the prosecutor objected to the deposition on the basis of prosecutorial privilege. After discussion, appellant’s counsel and the city attorney stipulated that appellant served written interrogatories on the city prosecutor. But that process was not completed by the discovery deadline.

On March 8, 2004, appellant sought an extension of the discovery deadline. Following a hearing, the motion was denied. The district court concluded that an extension was inappropriate because the matter was scheduled for trial on June 21, 2004, and appellant had 10 months to complete discovery. The court determined that appellant’s claims were “not complicated” and it was “simply too late for more discovery.” But the court agreed to honor discovery agreements between counsel as set forth on the record. Apparently, appellant did not follow up on obtaining answers to the interrogatories from the city prosecutor.

In May 2004, appellant sought to amend her complaint to request declaratory relief, alleging that the definition of harassment in MinmStat. § 609.748, subd. 1(a)(1) was facially unconstitutional. In separate orders, the district court granted summary judgment for respondent on all claims, granted appellant’s motion to amend, and dismissed the claim that the statute was unconstitutional. On appeal, appellant challenges the denial of declaratory relief and the dismissal of her claims for malicious prosecution, abuse of process, and defamation.

ISSUES

I.Is Minnesota’s harassment statute, Minn.Stat. § 609.748, subd. 1(a)(1) (2004), unconstitutionally overbroad or void for vagueness on its face?

II. Did the district court err in granting summary judgment against appellant’s malicious-prosecution, abuse-of-process, and defamation claims?

III. Did the district court abuse its discretion in denying appellant’s request to extend the discovery period or by ordering that appellant could not be present at respondent’s deposition?

ANALYSIS

I.

Appellant challenges the constitutionality of Minn.Stat. § 609.748, subd. 1(a)(1) (2004) on its face, contending that it is overbroad and void for vagueness. “Evaluating a statute’s constitutionality is a question of law.” Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999). Ordinarily, laws are afforded a presumption of constitutionality, but statutes allegedly restricting First Amendment rights are not so presumed. See State v. Botsford, 630 N.W.2d 11, 15 (MinnApp. 2001), review denied (Minn. Sept. 11, 2001).

The United States and Minnesota Constitutions guarantee the right to free speech. U.S. Const, amend. I; Minn. Const, art. I, § 3. This right, however, is not unlimited. Since the ratification of the United States Constitution, “our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305 (1992) (quoting Chaplinsky v. N.H., 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)).

Standing and Mootness

Respondent contends that appellant does not have standing to challenge the harassment statute on void-for-vagueness grounds, and that appellant’s challenge is moot. We address the issues of standing and mootness, respectively, before reaching the merits of a constitutional claim. See, e.g., Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn.2005) (mootness); Rukavina v. Pawlenty, 684 N.W.2d 525, 531 (Minn.App.2004) (standing), review denied (Minn. Oct. 19, 2004). Whether a party has standing to sue and whether a claim is moot are questions of law, which we review de novo. Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn.App. 2004) (mootness), review denied (Minn. Apr. 4, 2005); Schiff v. Griffin, 639 N.W.2d 56, 59 (Minn.App.2002) (standing).

Respondent challenges appellant’s standing to assert that the statute is void for vagueness. Because appellant couples her vagueness claim with an overbreadth challenge, we determine her standing in the context of both claims. See In re Welfare of S.L.J., 263 N.W.2d 412, 417 (Minn.1978) (“Although the overbreadth and vagueness doctrines are conceptually distinct, in the First Amendment context they tend to overlap, since statutes are often overly broad because their language is vague as to what behavior is proscribed.”); see also State v. Castellano, 506 N.W.2d 641, 648-49 (Minn.App.1993) (considering a facial vagueness claim along with a facial overbreadth claim).

A long-recognized exception to the ordinary rules of standing applies to facial overbreadth challenges. State v. Mireles, 619 N.W.2d 558, 561 (Minn.App. 2000) (citing Broadrick v. Okla., 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)), review denied (Minn. Feb. 15, 2001). Under this exception, the United States Supreme Court has determined that litigants may challenge a statute, “not because their own rights of free expression are violated, but because ‘the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’ ” Id. (citing Broadrick, 413 U.S. at 611-12, 93 S.Ct. at 2916); see also State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998) (discussing how the potential “chilling, effect” of a facially overbroad statute on constitutionally protected speech justifies recognizing standing to make a facial constitutional challenge, even if the litigant’s own activities are not constitutionally protected). Because the very existence of the harassment statute raises the possibility that others may refrain from free speech or expression, we conclude that the exception applies, and that appellant need not establish individual standing.

Respondent also argues that appellant’s challenge is moot because no restraining order is currently in effect against appellant. “[M]ootness can be described as the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Kahn, 701 N.W.2d at 821 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 708-9, 145 L.Ed.2d 610 (2000)). When a facial challenge is made, the challenge is moot if the statute has been repealed and is no longer in effect, but the fact that a particular litigant is not subject to enforcement proceedings does not render a facial challenge moot. E.g., Massa chusetts v. Oakes, 491 U.S. 576, 583-84, 109 S.Ct. 2633, 2638, 105 L.Ed.2d 493 (1989) (once a statute allegedly violating the First Amendment has been repealed, a facial challenge will become moot if the regulation cannot “chill protected expression in the future”). In the context of this facial challenge, it is inconsequential that appellant is no longer subject to a restraining order because the statute itself has not been repealed and is alleged to chill protected future expression.

The “requisite personal interest,” which is asserted by appellant on behalf of herself as well as third-parties, has existed throughout the litigation. Thus, we retain jurisdiction over appellant’s constitutional claims.

Overbreadth

Appellant contends that the harassment statute is unconstitutionally overbroad on its face. The crux of appellant’s claim is that the statute violates the right to free speech. The statute defines harassment to include

a single incident of physical or sexual assault or 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). A person who is subject to harassment as defined in the statute may seek a restraining order from the district court. Id., subd. 2. “A petition for relief must allege facts sufficient to show the following: (1) the name of the alleged harassment victim; (2) the name of the respondent; and (3) that the respondent has engaged in harassment.” Id., subd. 3(a). Any petition must be accompanied by an affidavit made under oath stating the specific facts and circumstances justifying relief. Id.

If the petitioner alleges “an immediate and present danger of harassment,” the district court may issue an ex parte temporary restraining order, provided that it “finds reasonable grounds to believe that the respondent has engaged in harassment.” Id., subd. 4(a), (b). The ex parte order is effective until a hearing is held on the issuance of a restraining order. Id., subd. 4(c). After a hearing, a court may issue a restraining order effective for no longer than two years if it “finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment.” Id., subd. 5(3). A person who violates a restraining order is subject to criminal penalties. Id., subd. 6(a)-(d).

Appellant does not challenge the constitutionality of the first prong of the definition of harassment, i.e., a single incident of physical or sexual assault. Instead, appellant’s challenge is directed at the second prong of the definition, i.e., “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.” Minn.Stat. § 609.748, subd. 1(a)(1).

Appellant claims that the second prong of the definition of harassment is over-broad because it could encompass words or actions protected by free speech under the United States and Minnesota Constitutions. Appellant argues that protected expressions, which appellant alleges include calling another a “slut,” expressions of grief, sadness, or joy, and telling someone to stay away from one’s home, are all impermissibly affected by the statutory definition.

“A statute is overbroad on its face if it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights.” Machholz, 574 N.W.2d at 419. ' “[B]ecause the overbreadth doctrine has the potential to void an entire statute, it should be applied ‘only as a last resort’ and only if the degree of overbreadth is substantial and the statute is not subject to a limiting construction.” Id. Fundamentally, “[a] statute should only be overturned as facially overbroad when the statute’s overbreadth is substantial.” Id.

Respondent argues that the language of the statute in question is not overbroad because it does not implicate the First Amendment. Respondent relies on cases involving time, place, and manner restrictions. See, e.g., Castellano, 506 N.W.2d at 645 (upholding an ordinance prohibiting targeted residential picketing); Welsh v. Johnson, 508 N.W.2d 212, 216-17 (Minn. App.1993) (upholding the application of section 609.748 against person who engaged in targeted residential picketing). We conclude that respondent’s reliance on these cases is misplaced. The harassment statute on its face is not a time or place restriction on speech in a public forum. See Minn.Stat. § 609.748, subd. 1(a)(1). Instead, it is directed at repeated intrusive or unwanted conduct that potentially could occur at any time or place. See id.

But the state may regulate certain categories of words or conduct without substantially infringing on speech or expressive conduct protected by the First Amendment. In that regard, “fighting words” and “true threats” are not within the area of constitutionally protected speech and may be regulated. See R.A.V., 505 U.S. at 383-84, 112 S.Ct. at 2543; see also Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003) (“true threats”); Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769 (“fighting words”). “Fighting words” are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769. The basic test under the “fighting words” doctrine is whether a person of common intelligence would understand the words as likely to cause the average addressee to fight. Id. at 573, 62 S.Ct. at 770. , “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359, 123 S.Ct. at 1548 (quotation omitted). A statute that is narrowly tailored to ban or regulate unprotected words of conduct, such as “fighting words” or “true threats” does not implicate the First Amendment and cannot, therefore, be successfully challenged as facially overbroad. See R.A.V. 505 U.S. at 383-84, 112 S.Ct. at 2543.

The state may also regulate conduct that is invasive of the privacy of another. Gormley v. Dir., Conn. State Dept. of Prob., 632 F.2d 938, 942 (2d Cir. 1980) (upholding statute prohibiting telephone harassment as not unconstitutionally overbroad because such harassment involves conduct and intrudes on the privacy of others), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 (1980). In Gormley, the court upheld a statute similar to Minnesota’s harassment statute, which provided that: “A person is guilty of harassment when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.” Id. at 940 n. 1 (citation omitted). In upholding the statute, the court explained:

To run afoul of the statute, a telephone call must be made not merely to communicate, but with intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm. Whether speech actually occurs is irrelevant, since the statute proscribes conduct, whether or not a conversation actually ensues.

Id. at 942 (quotations omitted). Because the focus of the statute was on conduct that intruded on the privacy of another, the statute did not violate the First Amendment.

Here, the focus of the statute is to prohibit repeated and unwanted acts, words, or gestures that have or are intended to have a substantial adverse effect on the safety, security, or privacy of another. See Minn.Stat. § 609.748, subd. 1(a)(1). Thus, the language of the statute is directed against constitutionally unprotected “fighting words” likely to cause the average addressee to fight or protect one’s own safety, security, or privacy; “true threats” evidencing an intent to commit an act of unlawful violence against one’s safety, security or privacy; and speech or conduct that is intended to have a substantial adverse effect, i.e., is in violation of one’s right to privacy. See Black, 588 U.S. at 359, 123 S.Ct. at 1548 (“true threats”); Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769 (“fighting words”); Gonnley, 632 F.2d at 942. Because the harassment statute only regulates speech or conduct that constitutes “fighting words,” “true threats,” or substantial invasions of one’s privacy, we conclude that the statute is narrowly tailored and is, therefore, constitutional.

Appellant further argues that the statute is overbroad because it focuses on the subjective response of another person, or “target” of the speech or conduct. Appellant relies on Minnesota Supreme Court’s decision in Machholz, but that case is distinguishable. In Machholz, the supreme court held that a different harassment statute, defining criminal-felony harassment, was unconstitutional because it was facially overbroad. 574 N.W.2d at 421. That statute defined “harass” as “intentional conduct in a manner that: (1) would cause a reasonable person under the circumstances to feel oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim.” Id. at 418 (quoting Minn.Stat. § 609.749, subds. 1(1)-(2) (1996)). The supreme court interpreted that statute to criminalize “any and all intentional conduct causing a reasonable person to feel oppressed, persecuted, or intimidated.” Id. at 420. Because the sweeping language covered protected as well as unprotected speech, the supreme court concluded that the statute was not susceptible to a construction that would narrow its application to “fighting words.” Id.

The harassment statute challenged in this case does not depend entirely on whether the “target” suffers adverse effects. It requires both (1) repeated intrusive or unwanted acts, words, or gestures and (2) a substantial adverse effect or an intent to adversely effect the safety, security, or privacy of another. Minn.Stat. § 609.748, subd. 1(a)(1). A single incident of intimidating conduct, such as the conduct analyzed in Machholz, is not sufficient under the statute before us. See id. Further, the statute before us requires a court to find that there are reasonable, rather than merely subjective, grounds to believe that the accused engaged in harassment. See id., subd. 5(3). In other words, section 609.748 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. Therefore, we conclude that the statute does not infringe on constitutionally protected speech and is not unconstitutionally overbroad.

Further, there is no showing that the overbreadth can be characterized as “substantial.” See Machholz, 574 N.W.2d at 419 (observing that a statute to be overturned as overbroad only if the over-breadth is substantial). For example, even if we were to accept appellant’s characterization that calling another a “slut” is an expressive opinion protected by the First Amendment, only such expression specifically intended to cause or actually causing a “substantial adverse effect” on another’s safety, security, or privacy would satisfy the statutory definition. “[W]hen speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). Here, the governmental interest in protecting individuals against repeated and substantial intrusions far outweighs any incidental expression of personal “opinion.” In upholding the issuance of a restraining order under the harassment statute, this court observed:

We do not suggest that [the harassment statute] mandates “Minnesota nice” or some artificial code of civility, as appellant contends. The legislature has determined that certain conduct is sufficiently offensive and disturbing that it is not tolerable in civilized society. Individuals are free to express outrage.... But there are limits to such expressions in order to keep peace in the community.... To this end, the harassment laws place carefully limited restraints on individuals whose conduct goes beyond an acceptable expression of outrage and civilized conduct, and instead causes a substantial adverse effect on another’s safety, security or privacy.

Kush v. Mathison, 683 N.W.2d 841, 845-46 (Minn.App.2004) (holding that the district court did not abuse its discretion by issuing a restraining order under section 609.748 but not ruling on the constitutionality of the statute) (citations omitted). We conclude that the incidental impact on protected speech, if any, does not render the statute substantially overbroad.

Vagueness

Appellant contends that the harassment statute is unconstitutionally vague on its face, and therefore, violates the right to due process. Both the United States and Minnesota Constitutions provide that a person shall not be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1; Minn. Const, art. I, § 7. Vague penal statutes are prohibited as a violation of due process. See State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985). If a statute imposes criminal penalties, a higher standard of certainty of meaning is required. Id. (citing Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983)).

Appellant contends that the harassment statute is “quasi-criminal” in nature and therefore is subject to the heightened definiteness requirement of due process. The district court concluded that the harassment statute creates a “quasi-criminal” offense because an individual may be prosecuted for violating a restraining order. We agree.

“Quasi-criminal” statutes are “[l]aws that provide for punishment but are civil rather than criminal in form[.]” Savina Home Indus., Inc. v. Sec’y of Labor, 594 F.2d 1358, 1362 n. 6 (10th Cir. 1979). For purposes of a vagueness analysis, “quasi-criminal” statutes are tantamount to criminal ones. See Women’s Med. Ctr. of NW Houston v. Bell, 248 F.3d 411, 422 (5th Cir.2001) (applying the criminal vagueness analysis to a “quasi-criminal” statute). Here, although the harassment proceeding is civil in nature, criminal sanctions may result if the court order is violated. MinmStat. § 609.748, subd. 2, subd. 6(b)-(d) (providing misdemeanor, gross misdemeanor, or felony penalties for violations of restraining orders). Therefore, we conclude that the harassment statute is “quasi-criminal” and is subject to the heightened definiteness requirement.

“[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Newstrom, 371 N.W.2d at 528 (quoting Kolender, 461 U.S. at 357, 103 S.Ct. at 1858). A criminal statute need not be drafted with absolute certainty or mathematical precision. State v. Enyeart, 676 N.W.2d 311, 321 (Minn.App.2004). It need only furnish criteria that persons “of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.” State v. Suess, 236 Minn. 174, 180, 52 N.W.2d 409, 414 (Minn. 1952). “To succeed in a facial challenge to vagueness outside the context of the First Amendment, a complainant must demonstrate that the law is impermissibly vague in all its applications.” Enyeart, 676 N.W.2d at 320 (quoting Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362). The rationale for requiring complete vagueness is that “[a] ‘facial’ challenge ... means a claim that the law is ‘invalid in toto — and therefore incapable of any valid application.’ ” Flipside, 455 U.S. at 495 n. 5, 102 S.Ct. at 1191 n. 5 (citation omitted).

Here, appellant must demonstrate that the law is vague in all its applications because the statute proscribes only words and conduct unprotected by the First Amendment. But appellant fails to demonstrate that an ordinary person of reasonable understanding would be unable to determine, with reasonable certainty, what repeated incidents likely to have a substantial adverse effect on the safety, security, or privacy of another are subject to the statute. No reasonable person could inadvertently violate the statute because of an inability to determine what type of conduct is prohibited. A reasonable person would know, for example, that repeated confrontations and incessant, unwanted phone calls over the course of several months could' constitute harassment within the meaning of the statute. Therefore, the district court did not err in concluding that the statute is not unconstitutionally vague.

II.

Appellant contends that the district court erred in granting summary judgment against her malicious prosecution, abuse of process, and defamation claims. On appeal from summary judgment, this court makes two determinations: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). “A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). To present a genuine issue of material fact, affidavits must be based on personal knowledge and set forth facts that would be admissible in evidence. Minn. R. Civ. P. 56.05.

“On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761. “The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts.” Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn.2004). “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiffs claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995).

Malicious Prosecution

Appellant contends that the district court erred by granting summary judgment on her malicious prosecution claim. To state a claim for malicious prosecution, appellant must demonstrate that:

(1) the action was brought without probable cause or reasonable belief that the plaintiff would ultimately prevail on the merits; (2) the action must be instituted and prosecuted with malicious intent; and (3) the action must terminate in favor of [appellant].

Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn.App.1997), review denied (Minn. Oct. 31, 1997). “Probable cause for pursuing a civil action consists of such facts and circúmstances as will warrant a cautious, reasonable and prudent person in the honest belief that his action and the means taken in prosecution of it are just, legal and proper.” First Nat’l Bank of Omaha v. Marquette Nat’l Bank, 482 F.Supp. 514, 522-23 (D.Minn.1979), aff'd, 636 F.2d 195 (8th Cir.1980), cert. denied, 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240 (1981). Only “reasonable belief’ that probable cause existed ⅛ necessary to negate a malicious prosecution claim. Kellar, 568 N.W.2d at 192. A cause of action for malicious prosecution “has always been carefully circumscribed, and not favored in law, the reason being that ‘public policy favors ... prosecutions and affords such protection of another in good faith and on reasonable grounds as is essential to public justice.’ ” Lundberg v. Scoggins, 335 N.W.2d 235, 236 (Minn.1983) (citation omitted).

Appellant argues that three series of incidents, taken together, demonstrate genuine issues of material fact exist which render summary judgment inappropriate for her malicious prosecution claim. We address each series in turn.

A. Initial Restraining Orders

First, appellant argues that respondent’s filing of a- petition and affidavit for the ex parte restraining order and restraining order that were in effect from June 2001 until August 2003 constituted malicious prosecution. But appellant does not assert any genuine issues of material fact. In short, the August 2001 restraining order issued to respondent, without other compelling evidence, effectively pre-eludes appellant from pursuing this claim. Because the district court found that appellant’s behavior constituted harassment and it granted the initial restraining order, appellant cannot demonstrate that the petition for the restraining order was brought without probable cause. And because appellant did not appeal that order, she cannot now collaterally attack it.

Appellant also presents no admissible evidence that respondent had malicious intent in seeking the August 2001 order. Appellant’s mere belief that the restraining order was sought with malicious intent is insufficient to establish the existence of a genuine issue of material fact. See Minn. R. Civ. P. 56.05. Finally, the action did not terminate in favor of appellant because the district court granted relief to respondent and issued the restraining order. Therefore, appellant’s claim that the filing of the 2001 petition and affidavit for a restraining order constitutes malicious prosecution fails as a matter of law.

B. Prosecution for Violation of the Restraining Order

Second, appellant argues that the June 2002 incident at the WCC in which appellant was arrested for violating the August 2001 restraining order, along with respondent’s other allegations that appellant violated the restraining order and appellant’s subsequent arrest and prosecution, constituted malicious prosecution.

Appellant claims that witnesses offered different testimony at trial in October 2002 than in the June 2002 police report, and, therefore, this prosecution was brought without probable cause. But appellant failed to establish that testimony incorporated into the police report did not support the prosecution. In 2002, the district court determined that there was probable cause to make the arrest based on respondent’s statement that appellant had violated the restraining order, and the police report indicates that another witness corroborated the statement.

Appellant nonetheless argues that respondent improperly persuaded the city prosecutor to file criminal charges against her, and force the case to trial with resulted in her acquittal. But appellant fails to establish that respondent brought the action, i.e., the criminal complaint, without probable cause. In fact, the action was initiated by the city prosecutor on the basis of an independent exercise of prose-cutorial discretion. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978) (noting that decision whether or not to prosecute generally rests entirely with prosecutor); State v. Herme, 298 N.W.2d 454, 455 (Minn.1980) (same); accord Peterson Novelties, Inc. v. City of Berkley, 259 Mich. App. 1, 672 N.W.2d 351, 364 n. 17 (2003) (“The prosecutor’s exercise of his independent discretion in initiating and maintaining a prosecution is generally a complete defense to an action for malicious prosecution.”). Appellant did not produce evidence that the prosecutor was controlled by respondent and failed to exercise independent discretion.

Appellant also fails to show the second element of malicious prosecution, i.e., that respondent acted with malicious intent in reporting appellant’s violations of the restraining order. See Kellar, 568 N.W.2d at 192. Appellant speculates that respondent had malicious intent in seeking to bring the charge against her but does not support that speculation with admissible evidence. See Minn. R. Civ. P. 56.05.

While appellant is able to satisfy the third criterion, i.e., the criminal charge resolved in her favor, she failed to establish the first two criteria. Here, we have a criminal complaint that was pursued by the city prosecutor, not respondent. And the district court concluded that probable cause existed for the arrest and to proceed with a trial. Given these undisputed facts, summary judgment was appropriate.

C. Petition for Extension of the Restraining Order

Third, appellant argues that respondent’s petition for an extension of the restraining order in 2003 constituted malicious prosecution. But appellant again fails to meet the first two elements for malicious prosecution, i.e., lack of probable cause for the relief sought and that respondent acted with malicious intent. Here, in extending the restraining order, the district court specifically found that respondent’s claims were credible and appellant’s testimony was not credible, and that appellant had violated the original restraining order on multiple occasions. And this court’s opinion that the facts found by the district court were ultimately insufficient to support a second restraining order does not establish that respondent lacked probable cause to seek additional relief. See Roer v. Dunham, 682 N.W.2d 179, 182 (Minn.App.2004). This court did not hold that the underlying petition and affidavits were insufficient to establish probable cause that respondent violated the restraining order; it only found that the findings made by that single incident of harassment were insufficient to support a new restraining order. Id.

Appellant offered no substantial evidence that respondent acted with malice in seeking additional relief in 2003. See Minn. R. Civ. P. 56.05. Accordingly, the fact that appellant prevailed on appeal from the 2003 order is insufficient to establish a claim of malicious prosecution.

Abuse of Process

Appellant also contends that the district court erred by granting summary judgment on her abuse-of-process claim. “The essential elements for a cause of action for abuse of process are the existence of an ulterior purpose and the act of using the process to accomplish a result not within the scope of the proceedings in which it was issued, whether such result might otherwise be lawfully obtained or not.” Kellar, 568 N.W.2d at 192. “[T]he test is whether the process was used to accomplish an unlawful end for which it was not designed or intended, or to compel a party to do a collateral act which he is not legally required to do.” Kittler & Hedelson v. Sheehan Props., Inc., 295 Minn. 232, 239, 203 N.W.2d 835, 840 (1973). Mere indirect injury to a person’s name or reputation is insufficient to constitute abuse of process. Hoppe v. Klapperich, 224 Minn. 224, 232, 28 N.W.2d 780, 787 (1947) (quotation omitted).

Appellant argues that respondent’s applications to the courts and police for establishment and enforcement of the restraining orders were purely retaliatory. But appellant failed to produce admissible evidence in the district court sufficient to establish the existence of genuine issues of material fact. Nothing in the record suggests that respondent used the harassment process to accomplish any result other than limiting appellant’s unwanted contacts and harassment described in the petition. The bare allegation that respondent had some greater scheme is insufficient to establish a genuine issue of material fact concerning an unlawful end. Therefore, the district court did not err in granting summary judgment against appellant on the abuse-of-process claim.

Defamation

Appellant argues that the district court erred in granting summary judgment on her defamation claim. To establish a claim for defamation, the claimant must offer proof of (1) a false statement; (2) communication to a third party; and (3) resulting harm to the claimant’s reputation in the community. Weinberger v. Maplewood Review, 668 N.W.2d 667, 673 (Minn.2003); Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). Damages are presumed as a matter of law where the alleged defamation is a false accusation of criminal activity. See Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987) (noting that false accusations of criminal activity are defamatory per se).

Appellant argues that summary judgment was inappropriate because there is evidence that respondent made false statements that appellant “committed criminal acts.” Appellant claims that she provided evidence of “defamation by implication,” i.e., that respondent led many at the WCC to believe that appellant was “violent” or that they should fear for their safety. But the May 22, 2002 letter from respondent to the WCC does not assert that appellant was engaging in criminal activity or accuse appellant of any criminal activity. The letter did not create a genuine issue of material fact sufficient to preclude summary judgment on the defamation claim.

Appellant claims that other portions of the record, such as respondent’s and appellant’s depositions, support her claim for defamation. We have carefully reviewed these portions of the record cited by appellant, and they do not support her claim. For example, appellant stated in her deposition that respondent denied the affair in a conversation with a friend, and the friend inferred that respondent was calling appellant a liar. But appellant admitted that her friend did not state that the word “liar” was used in the conversation. In short, appellant failed to provide admissible evidence in support of her claim for defamation. Therefore, the district court did not err in granting summary judgment against appellant.

III.

Appellant challenges two discovery rulings by the district court. The district court has broad discretion in granting or denying discovery requests. Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn.1987). “Absent a clear abuse of discretion, [the district] court’s decision regarding discovery will not be disturbed.” Id. In particular, whether to grant or deny a continuance is within the sound discretion of the district court, and its decision will not be reversed unless it has abused its discretion. State v. Sanders, 598 N.W.2d 650, 654 (Minn.1999). The district court has “broad discretion to fashion protective orders and to order discovery only on specified terms and conditions.” Erickson, 414 N.W.2d at 409.

Appellant argues that the district court improperly denied her motion to extend the discovery period in order to take the deposition of the city prosecutor. There is a “presumption in favor of granting continuances to allow sufficient time for discovery.” Rice v. Perl, 320 N.W.2d 407, 412 (Minn.1982). Accordingly, the court considers two factors when determining whether to grant a continuance. Id.. First, the court considers whether the moving party has been “diligent in obtaining or seeking discovery.” Id. Second, the court considers whether the moving party seeks further discovery with “the good faith belief that material facts will be uncovered, or ... [is] merely engaging in a ‘fishing expedition.’ ” Id. (citation omitted).

Here, appellant failed to establish diligence in obtaining or seeking discovery. The district court determined that (a) appellant’s motion to extend the discovery deadline was untimely (because it was brought just two days before the discovery deadline); and (b) appellant had ten months to complete discovery on claims that were not overly complicated. Appellant does not dispute these specific findings. When the city attorney and appellant agreed that the deposition would be taken by written interrogatories, it was incumbent on appellant to obtain timely responses or bring a motion to compel. But appellant failed to diligently follow up with either the city attorney or the district court. On this record, appellant failed to establish good cause, and the district court did not abuse its discretion in denying the motion to extend the discovery period.

Second, appellant challenges the protective order that required her to monitor respondent’s deposition in another room. Minn. R. Civ. P. 26.03(e) provides that for good cause, the court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... that discovery be conducted with no one present except persons designated by the court[.]” Given the history between the parties, the acrimonious nature of the litigation, and the existence of a restraining order in effect at the time of the deposition that precluded contact between the parties, the district court did not abuse its discretion in fashioning the protective order to allow appellant to monitor the deposition without having direct contact with respondent.

Finally, respondent moves to strike 16 statements from the. fact section of appellant’s brief. An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). We have limited our review to the facts that are supported by the record. To the extent that appellant’s brief relies on inadmissible evidence, or mischaraeterizations of the record, we did not consider it in reaching our decision.

DECISION

The definition of harassing conduct in MinmStat. § 609.748, subd. 1(a)(1) (2004) is neither facially overbroad nor void for vagueness. Appellant failed to present evidence sufficient to establish genuine issues of material fact to support her claims for malicious prosecution, abuse of process, and defamation. The district court did not abuse its discretion in denying appellant’s discovery requests. Accordingly, we affirm the district court’s grant of summary judgment to respondent and denial of declaratory judgment.

Affirmed; motion denied.

      . The statute, which remains unchanged, requires a "single incident of physical or sexual assault or 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.” Minn.Stat. § 609.748, subd. 1(a)(1) (2004) (emphasis added).

      . " 'Facial' overbreadth challenges should be distinguished from 'as applied' challenges, the latter involving a judgment as to the constitutionality of a statute based on the harm to the litigating party.” Mireles, 619 N.W.2d at 561 n. 1 (citing Turchick v. U.S., 561 F.2d 719, 721 n. 3 (8th Cir.1977)). Appellant does not challenge section 609.748 as applied to her.

      . This interpretation is consistent with the accepted principle of constitutional interpretation that courts should, when feasible, construe the regulatory effect of statutes challenged under the First Amendment to punish only "fighting words.” See S.L.J., 263 N.W.2d at 419 n. 5 (observing that the United States Supreme Court has encouraged state courts "to sustain the constitutionality of their offensive-speech statutes by construing them narrowly to punish only fighting words”).

      . Appellant cites Dunnell's Minnesota Digest to define "malice/' but fails to meet the definition she cites. 31 Dunnell’s Minn. Digest Malicious Prosecution § 2.03 (4th ed.1996). Appellant makes no showing that the respondent "instituted a groundless prosecution knowingly and willfully.” Id.

      . The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect — the improper use of a regularly issued process.

        Black’s Law Dictionary 977-78 (8th ed.2004) (quoting 52 Am.Jur.2d Malicious Prosecution § 2, at 187 (1970)).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Muna Dayib AHMED, Appellant.
    No. A04-2240.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent.
    Fred A. Reiter, Fred A. Reiter & Associates, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and WORKE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant Muña Dayib Ahmed challenges her convictions of two counts of criminal vehicular operation (gross misdemeanor), in violation of Minn.Stat. § 609.21, subd. 2b(l) (2004), arguing that her rights under the Confrontation Clause were violated and that various other misconduct and error occurred. Because we conclude that appellant’s Confrontation Clause rights were not violated and that her arguments on all other issues fail, we affirm.

FACTS

On February 29, 2004, A.A. drove to St. Paul and picked up S.W. and drove S.W. to Minneapolis, where A.A. went inside a building for several minutes. A.A. returned to the car, and as they drove onto Interstate 94, a car began chasing A.A.’s vehicle. The chase lasted approximately 20 minutes. A.A. and S.W. exited the interstate, and the car followed them and attempted to hit them. The chasing car ultimately hit A.A.’s vehicle and caused it to roll over several times.

Appellant was charged with two counts of assault in the second degree (felony), in violation of Minn.Stat. §§ 609.222, subd. 1, 609.101, subd. 2, 609.11 (2004), and two counts of criminal vehicular operation (gross misdemeanor), in violation of Minn. Stat. § 609.21, subd. 2b(l) (2004). After a jury trial, appellant was acquitted of the two assault charges and convicted of the two criminal-vehicular-operation charges.

A.A. did not testify at trial. The state indicated that it had served him with a subpoena twice by leaving the subpoena at A.A.’s home with a family member (who indicated that A.A. lived there and would return shortly). Further, the state witness-victim advocate telephoned A.A. to remind him to attend the trial and that failing to respond to the subpoena is a crime. S.W. testified that A.A. told her he was not going to testify. A bench warrant was issued but did not procure A.A.’s presence at trial. The district court found that A.A. was unavailable.

According to S.W., A.A. stated during the chase that appellant, his ex-girlfriend, was the driver of the other car. The state indicated to the court that A.A. called the police and recanted this identification. The district court made a preliminary ruling excluding A.A.’s statements to S.W. on the basis that they lacked reliability and that appellant had no opportunity to confront the declarant. S.W. testified at trial that she had several opportunities to view the driver of the chasing vehicle and identified the driver as appellant.

On cross-examination, appellant’s counsel asked S.W. whether she remembered telling Detective Stephen Nelson of the Brooklyn Park Police Department sometime after the accident that she could not identify the driver of the other vehicle, and S.W. responded in the affirmative. In a bench conference, the state then requested permission to use hearsay from A.A. to explain why S.W. did not identify the driver of the car for Detective Nelson. The district court concluded that “the door [had] been opened” and allowed S.W. to testify that A.A. called her and persuaded her that the driver of the other vehicle was not appellant.

Detective Nelson then testified, first describing his investigation of the cars involved in the incident and then stating his conclusion that it was appellant’s car that collided with A.A.’s ear. Nelson then testified that S.W. indicated on a later date that she could not identify the driver of the vehicle because A.A. had persuaded her that the driver was not appellant.

The district court heard testimony from S.W. outside the presence of the jury to determine whether A.A.’s statements to S.W. identifying the driver of the vehicle could be admitted under a hearsay exception. S.W. testified that A.A. called her and asked her not to testify against appellant because he and appellant “just got back together.” According to S.W., A.A. called her again later and threatened that appellant’s family would beat her up if she testified against appellant. The district court then reversed its prior ruling and ruled that it would allow A.A.’s statements identifying the driver of the other.vehicle as his former girlfriend, appellant, as excited utterances and then-existing emotional or physical conditions, under Minn. R. Evid. 803.

Officer Aaron Albright of the Brooklyn Park Police Department then testified, over appellant’s objection, that S.W. told him the driver of the other vehicle was A.A.’s former girlfriend and that she knew A.A.’s former girlfriend was the driver because A.A. told her so. The state recalled S.W., who testified that A.A. told her during the chase that the driver of the vehicle was appellant, A.A.’s former girlfriend. S.W. testified that she identified the driver to the police at the scene of the accident as appellant based on A.A.’s statement.

Appellant testified that on February 29, 2004, she had four friends staying with her. She testified that her father called and asked her to come over and help him, and that she agreed. Appellant conceded that her vehicle was involved in the collision, but testified that she was not the driver and had left her keys on the refrigerator in her apartment, where someone must have picked them up. Appellant’s father testified that appellant was with him during the chase because he was ill. He testified that he picked appellant up, rather than have her drive, because there are few available parking spaces near his apartment. Appellant’s cousin testified that appellant’s father called and asked her to come help him, but that she suggested he call appellant. Appellant’s cousin also testified that she talked to appellant at her father’s apartment on the phone around the time of the chase.

In its closing statement, the state discussed the elements of the jury instruction on witness credibility and noted relevant facts from the case for each element. At the end of eight transcribed pages, the state concluded that it was unlikely that appellant’s alibi defense was truthful:

Surely everyone recalls [juror W.], a man, a prospective juror, very interesting prospective juror; and [juror W.] informed us that he had identical triplets, and he informed us that the odds of having identical triplets were 1 in 14 million.
And I would suggest to you that when you take into consideration all of the factors in evaluating the credibility of these respective witnesses, that the chances that Ms. Ahmed’s alibi is the truth here are similarly astronomical.

Appellant responded in her closing argument: “The point of fact is that [juror W.] did have identical triplets. That’s a point. He actually did have that.”

Following closing arguments, the district court instructed the jury on various aspects of the case. The court stated that the attorneys’ arguments were not evidence and that if the attorneys’ version of the evidence differed from the jurors’ recollections, the jurors should disregard the attorneys’ statements.

The jury began deliberations late in the afternoon of Tuesday, August 31, 2004. After about an hour, the jury returned to the courtroom. The district court answered two jury questions and excused the jury for the day. The jury deliberated all day the following day. In the morning on Thursday, September 2, the jury indicated to the court that they were not able to reach a unanimous verdict. The court responded by reading from Minnesota Practice, CRIMJIG 3.04 (1999):

In order for you to return a verdict, whether guilty or not guilty as to each charge, each juror must agree to that verdict. Your verdict must be unanimous. You should discuss the case with one another and deliberate with a view to reaching an agreement if you can do so without violating your individual judgment. You should decide the case for yourself but only after you have discussed the case with your fellow jurors and have carefully considered their views. You should not hesitate to reexamine your views and change your opinion if you become convinced that they are erroneous, but you should not surrender your honest opinions simply because other jurors disagree or merely to reach a verdict.

The jury deliberated without further communications until late that afternoon. At that point appellant moved for a mistrial on the grounds that the jurors indicated they were deadlocked and might feel pressure to reach a verdict before the upcoming Labor Day weekend. The court denied the motion at the time, but indicated it might consider the motion again the next day. The jury was excused for the evening and then returned a verdict late in the morning the next day, Friday, September 3.

The district court sentenced appellant to serve 365 days at the workhouse, with credit for one day served, beginning in October 2004. The court ordered that appellant be released on January 1, 2005, so that she would not be in prison on her due date, January 14. The court ordered appellant to then return to the workhouse on April 15, 2005, to complete her sentence there or on electronic home monitoring but with at least 180 days in custody. The court additionally sentenced appellant to 365 days on another count and stayed the sentence for three years.

On November 17, 2004, appellant moved to extend the time for service and filing of a motion for a new trial on the grounds that trial counsel failed to timely move for a new trial. On the same day, appellant moved for a new trial, alleging several general errors without further explanation. Appellant also moved to amend her sentence on the grounds of her pregnancy and depression. The district court denied appellant’s motion to extend the time for a new-trial motion and denied appellant’s motion for a new trial on the basis that it was unsupported. The district court granted appellant’s motion for a hearing on her request to modify her sentence, but it appears that the district court denied the request to modify. This appeal followed.

ISSUES

I. Did the district court err by admitting S.W.’s testimony of A.A.’s statement identifying appellant as the driver of the vehicle?

II. Did the district court err by admitting Officer Albright’s testimony that S.W. told him A.A. identified appellant as the driver of the vehicle?

III. Was appellant denied the right to a fair trial because of prosecutorial misconduct?

IV. Did the district court abuse its discretion by denying appellant’s motion for a mistrial?

V. Did the district court err by denying appellant’s motion for an extension of time to file a motion for a new trial or abuse its discretion by denying appellant’s motion for a new trial?

VI. Was appellant denied the effective assistance of counsel?

VII. Was appellant’s sentence excessive?

DECISION

I.

Appellant argues that her rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated when the district court allowed S.W. to testify as to A.A.’s statements identifying appellant as the driver of the other vehicle, when A.A. did not testify at trial. This court reviews de novo the issue of whether hearsay statements violate the Confrontation Clause. State v. King, 622 N.W.2d 800, 806 (Minn.2001).

Under Ohio v. Roberts, the Supreme Court held that out-of-court statements by unavailable witnesses could be admitted without violating the Confrontation Clause only if the statements bear “adequate indi-cia of reliability.” 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980) (quotation omitted). This test is met if the hearsay “falls within a firmly rooted hearsay exception” or by “a showing of particularized guarantees of trustworthiness.” Id. In Crawford v. Washington, the Supreme Court changed this test, holding that testimonial statements by witnesses who do not testify at trial could not be admitted unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). The Crawford test applies to testimonial statements, but the Roberts test still applies to nontestimo-nial statements. State v. Martin, 695 N.W.2d 578, 584-86 (Minn.2005).

Thus, if A.A.’s statement was testimonial, it should have been excluded because appellant did not have an opportunity to cross-examine A.A. Id. Under Minnesota law, if A.A.’s statement was not testimonial, it was correctly admitted only if it satisfies the Roberts test. Id.

In Crawford v. Washington, the Court did not specifically identify which types of statements are “testimonial,” but defined “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or providing some fact.” 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). Further, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. The Court then listed three “formulations of this core class of ‘testimonial’ statements”: (1) “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 51-52,124 S.Ct. at 1364.

In State v. Wright, the Minnesota Supreme Court concluded that certain statements to a 911 operator were not testimonial. 701 N.W.2d 802, 811 (Minn.2005). The supreme court rejected the proposition that all 911 calls are testimonial because the caller knows she is “initiat[ing] the criminal process.” Id. The supreme court instead reasoned that “[i]t is doubtful that in the face of immediate danger a caller is contemplating how her statements might later be used at a trial. In asking the caller questions, the 911 operator seeks to ascertain the nature of the caller’s peril and provide an appropriate response.” Id. In holding that the 911 call in that case was nontestimonial, the supreme court focused on the caller’s frightened and upset demeanor during the call, the temporal proximity of the call to the incident, and that the “operator focused only on obtaining information for an immediate intervention rather than a future prosecution ....” Id.

This court similarly focused on the de-clarant’s state of mind in State v. Lasnetski, 696 N.W.2d 387, 392-93 (MinmApp. 2005). In that case, this court held that a wife’s statements to the police while she was on the phone with her husband, trying to convince him not to commit suicide, were nontestimonial, because “[gjiven the stress of the moment, a reasonable, objective witness would not even contemplate the possibility of a later trial, but would be solely engaged in preventing a suicide.” Id. See also State v. Krasky, 696 N.W.2d 816, 819-20 (Minn.App.2005) (holding that a seven-year-old’s statements to a nurse practitioner about her father’s alleged child abuse were nontestimonial because there was no evidence that the child was aware that the statements would later be used at a trial), review granted (Minn. Aug. 16, 2005).

Here, A.A.’s statement was not ex parte in-court testimony or its functional equivalent or formalized testimonial materials. A reasonable, objective witness in A.A.’s position would not be thinking about the possibility of a later trial, but would be focused on avoiding the chasing vehicle. Also, the statement was made to the passenger in the vehicle, not to police or to anyone affiliated with law enforcement. Thus, an objective witness in A.A.’s position would not reasonably believe that his statement to S.W. would be available for use at a later trial, and the statement, as testified to by S.W., was nontestimonial. Therefore, this court must consider whether A.A.’s statement meets the Roberts test for nontestimonial hearsay.

Under Roberts, hearsay statements do not satisfy the Confrontation Clause unless the declarant is unavailable. 448 U.S. at 74, 100 S.Ct. at 2543. But in a subsequent case, White v. Illinois, the Court held that the Confrontation Clause did not require a showing of unavailability to admit a hearsay statement under the exception for excited utterances. 502 U.S. 346, 353-57, 112 S.Ct. 736, 741-43, 116 L.Ed.2d 848 (1992). In Crawford, the Court noted that White did not address the issue of whether testimonial statements had to be excluded even if the witness was unavailable, but did not otherwise disturb White’s holding as it applies to nontestimonial statements. 541 U.S. at 58 n. 8, 124 S.Ct. at 1368 n. 8. A.A.’s statement was admitted under an exception to the hearsay rule for excited utterances. See Minn. R. Evid. 803(2). Thus, no showing of unavailability was required to admit A.A.’s statement.

Even if the White holding did not survive Crawford, there is sufficient evidence that A.A. was unavailable. In order to admit the statements of an unavailable declarant, the state has to show that it made a “diligent, good-faith effort to locate and return a witness.” State v. Smith, 563 N.W.2d 771, 775 (Minn.App.1997). In Smith, the court held the state did not make a sufficient effort when it attempted to serve process on the witness but it was returned because the witness moved to Georgia and the state did not attempt to find the witness’s new address. Id. Here, the state served the subpoena on A.A. through a family member twice and called A.A., and a bench warrant was issued. The evidence supports the district court’s finding that A.A. was unavailable.

Under Roberts, the hearsay statements also have to bear “adequate indicia of reliability.” 448 U.S. at 66, 100 S.Ct. at 2539 (quotation omitted). But the reliability requirement is met if the hearsay is admitted under a firmly rooted exception. State v. Johnson, 679 N.W.2d 169, 174 (Minn.App.2004); see also White, 502 U.S. at 355 n. 8, 112 S.Ct. at 742 n. 8. The exception for excited utterances is firmly rooted. State v. Gates, 615 N.W.2d 331, 336-37 (Minn.2000). The second prong of the Roberts test is therefore met. A.A.’s statement was properly admitted through the testimony of S.W.

II.

Appellant also argues that her Confrontation Clause rights were violated when the district court allowed Officer Al-bright to testify that S.W. told him A.A. identified the other driver as appellant.

The Minnesota Supreme Court recently held that “statements made to the police during a field investigation should be analyzed on a case-by-case basis according to the circumstances under which the statements are made.” Wright, 701 N.W.2d at 812. The court stated several factors to consider in this analysis, including

(1) whether the declarant was a victim or an observer; (2) the declarant’s purpose in speaking with the officer (e.g., to obtain assistance); (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the de-clarant’s home, a squad car, or the police station); (5) the declarant’s emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and declarant; (7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded.

Id. at 812-13. Under these factors, S.W.’s statement to Officer Albright may have been testimonial. Crawford bars only certain testimonial statements of witnesses who do not appear at trial. 541 U.S. at 53-54, 124 S.Ct. at 1365. S.W. testified at trial and was available for cross-examination on this statement. Even if the admission of hearsay within hearsay implicates Crawford when the original declarant does not make a testimonial statement, but the subsequent declarant makes a testimonial statement, appellant has not made a showing that she was prejudiced by Officer Albright’s testimony.

A constitutional error does not require a new trial if it was harmless. State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). An error is harmless if the jury’s verdict was “surely not attributable to the error.” State v. Blanche, 696 N.W.2d 351, 367 (Minn.2005) (quotation omitted). When hearsay statements are admitted that are cumulative and not otherwise prejudicial, their admission is harmless error. State v. DeRosier, 695 N.W.2d 97, 106 (Minn.2005).

Here, S.W. testified that A.A. identified appellant as the driver shortly after Officer Albright testified that S.W. told him that A.A. identified appellant as the driver. Thus, Officer Albright’s testimony was cumulative. Officer Albright’s status as a police officer does not make the admission of A.A.’s statement to S.W. through him prejudicial because it does not make it any more likely that what A.A. told S.W. was true. Even if the admission of A.A.’s statement to S.W. through Officer Al-bright’s testimony was error, it was harmless.

III.

Appellant claims that the prosecutor committed misconduct by comparing the odds of her alibi defense being true with the chances, as stated by a juror, of having identical triplets. Appellant claims that, therefore, she was denied the right to a fair trial because of prosecutorial misconduct. Appellant did not object to the alleged misconduct at trial and responded to the prosecutor’s reference to the juror’s statement in her own closing argument.

This court will reverse a conviction due to prosecutorial misconduct at trial only if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Reversal is required for unusually serious misconduct unless it was harmless beyond a reasonable doubt, but reversal is required for less serious misconduct only when it substantially influenced the verdict. State v. Steward, 645 N.W.2d 115, 121 (Minn.2002).

Generally, a party waives any challenge to alleged misconduct on appeal by failing to object or seek a curative instruction at trial. State v. Ture, 353 N.W.2d 502, 516 (Minn.1984). But in that situation, this court may review the misconduct if it was unduly prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

Appellant first argues that the state’s closing argument was improper because it referred to facts not in evidence. “[A] prosecutor should not base his argument on facts not in evidence.” State v. Stofflet, 281 N.W.2d 494, 497 (Minn.1979). But the use of facts outside the evidence in a story to illustrate an argument is permissible. See State v. Smith, 619 N.W.2d 766, 771 (Minn.App.2000), review denied (Minn. Jan. 16, 2001) (upholding use of a fable’s moral that necessity is the mother of invention to show why the appellant changed his story). Here, the state used a juror’s statement that was not in evidence to illustrate a situation in which the odds of an occurrence are very slim. This was not improper.

Appellant also argues that the juror’s statement may have given the impression that the statistical possibility he stated was accurate or based on expert testimony, even though it may not have been. In considering whether this statement was misconduct, it is not relevant whether the probability of having identical triplets is actually one in 14 million, so this argument fails. Expert testimony on the statistical possibility of an event has been excluded because of its “potentially exaggerated impact on the trier of fact.” State v. Boyd, 331 N.W.2d 480, 482 (Minn.1983) (quoting State v. Carlson, 267 N.W.2d 170, 176 (Minn.1978)). But again, the prosecutor did not use the statement as evidence that appellant’s alibi defense was untrue, but only used it as an illustration, so the use of a statistic was not misconduct.

Finally, appellant argues that the state’s argument implied that appellant was lying and that it was an impermissible attack on her character. Character attacks have been found improper in closing arguments. State v. Washington, 521 N.W.2d 35, 39 (Minn.1994). But “the prosecutor is free to specifically argue that there is no merit to a particular defense in view of the evidence.” State v. Salitros, 499 N.W.2d 815, 818 (Minn.1993). Here, the prosecutor’s statement was a conclusion based on several transcribed pages of argument on facts and inferences about the credibility of witnesses. The statement was not an impermissible character attack, but simply an attempt to disprove appellant’s alibi defense.

Further, appellant did not show she was prejudiced by the prosecutor’s argument. Prosecutorial misconduct has been found harmless when the district court gave an instruction that closing arguments are not evidence. See Ture, 353 N.W.2d at 517. A defendant’s failure.to object to prosecutorial statements also suggests that the defendant did not consider them prejudicial. State v. Thomas, 305 Minn. 513, 517, 232 N.W.2d 766, 769 (1975). Here, the district court instructed the jury that attorneys’ arguments are not evidence, appellant did not object to the prosecutor’s statement at trial, and appellant chose to respond to the prosecutor’s statement, thereby negating some of its effect. Thus, appellant was not denied her right to a fair trial by prosecutorial misconduct.

IV.

Appellant argues that the district court erred in denying her motion for a mistrial. This court reviews a district court’s decision whether to grant a mistrial for abuse of discretion. State v. Yeboah, 691 N.W.2d 87, 91 (Minn.App.2005), review denied (Minn. Apr. 19, 2005).

A deadlocked jury can be the basis for a mistrial, but the length of time a jury is required to deliberate before a mistrial is ordered is discretionary with the district court. Id. In Jones, 556 N.W.2d at 910, the appellant argued that when the jury informed the court it was deadlocked, the district court should not have paraphrased and then later read CRIMJIG 3.04 but instead should have granted his motion for a mistrial. The supreme court rejected the appellant’s arguments and held that the district court’s instruction did not coerce the jury to reach a verdict. Id. at 912.

Here, the district court read CRIMJIG 3.04 to the jury when it indicated it was deadlocked, and this procedure is acceptable under Jones. Id. Any pressure that the jury may have felt based on the upcoming holiday weekend does not rise to a level requiring a mistrial because the jury was not sequestered. The district court did not abuse its discretion in denying appellant’s motion for a mistrial.

V.

Appellant claims the district court erred by denying her motion to extend the time for filing a motion for a new trial. Under Minn. R.Crim. P. 26.04, subd. 1(3), a motion for a new trial must be served within 15 days after the verdict. The motion must be heard within 30 days after the verdict, unless the court extends the period for good cause. Id. The rule does not provide any exceptions to the requirement that the motion be served within 15 days of the verdict, and appellant did not provide any authority for such exceptions, so the district court did not err by denying appellant’s motion to extend the time for filing a new-trial motion.

Appellant also claims the district court abused its discretion by denying her motion for a new trial. This court reviews the district court’s denial of a motion for a new trial for abuse of discretion. State v. Varner, 643 N.W.2d 298, 303 (Minn.2002). Here, appellant’s motion was not timely filed and only summarily listed the grounds for a new trial without citing any authority. Further, the grounds listed are the same as those raised here, all of which fail. The district court’s denial of appellant’s motion for a new trial was not an abuse of discretion.

VI.

Appellant claims she was denied the effective assistance of counsel because trial counsel did not timely move for a new trial. To prevail on such a claim, appellant must show that trial counsel’s performance “fell below an objective standard of reasonableness” and “that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” Blanche, 696 N.W.2d at 376.

In Patten v. State, this court held that the failure of trial counsel to make a motion for a new trial did not constitute ineffective assistance of counsel because “[t]he failure to move for new trial does not affect the right of a criminal defendant to obtain review of the issues which may have been raised in a motion for new trial.” 378 N.W.2d 648, 651 (MinmApp. 1985), review denied (Minn. Feb. 14, 1986). Similarly here, appellant can raise and has raised issues on appeal that could have been raised in a motion for a new trial. Appellant’s ineffective-assistance claim fails.

VII.

Appellant argues that her sentence is excessive because her father is ill and she recently had a baby. Appellant cites no legal authority for her position. This court need not address allegations not supported by legal analysis and citation. Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n. 1 (Minn.App.1994); see also State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App.1997) (refusing to consider issues raised for first time on appeal). Further, the district court considered appellant’s pregnancy and heard testimony from her father when it decided her sentence, so appellant’s argument lacks merit.

DECISION

Because A.A.’s statement was nontesti-monial and meets the Roberts test, the district court did not err by admitting it through S.W.’s testimony. Because the admission of S.W.’s statement about A.A.’s statement through Officer Albright’s testimony was harmless, appellant’s Confrontation Clause rights were not violated by its admission. Appellant’s other arguments fail.

Affirmed.