Dean Murray, petitioner, Respondent,

This opinion will be unpublished and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
A17-2024

Dean Murray, petitioner,
Respondent,

vs.

Casondra Schaffer, et al.,
Appellants.

Filed June 11, 2018
Reversed
Rodenberg, Judge

Goodhue County District Court
File No. 25-CV-17-2716

Dean Murray, Zumbrota, Minnesota (pro se respondent)

Eric J. Nelson, Andrew C. Wilson, Halber g Criminal Defense, Bloomington, Minnesota
(for appellants Casondra Schaffer and Joe Siebenaler)

Considered and decided by Ross, Presid ing Judge; Rodenberg, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellants Casondra Schaffer and Joe Sieb enaler appeal from the district court’s
issuance of a harassment restraining order (H RO) against them, arguing that the record
does not support the determination that th ey committed harassment. Appellants also
challenge the district court’s evidentiary ruling concerning an audio recording offered at

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the hearing. Because the district court made findings regarding only a single incident of
harassing conduct not involving assault, stal king, or impermissible dissemination of
images to support its HRO, and because the record does not support an implicit finding that
repeated instances of harassing conduct occurred, we reverse. We do not reach appellants’
evidentiary argument.
FACTS
Respondent Dean Murray petitioned the district court for an HRO against appellants
Casondra Schaffer and Joe Sieben aler. In his petition, respo ndent alleged that appellants
had harassed him and his family. An attach ment to respondent’s petition describes a
dispute between the parties about a shed, constructed by respondent, and located on
Schaffer’s father’s property. Schaffer had power-of-attorney for her father during the
period of time involved here. Respondent erected the shed near his home, but he
mistakenly thought he was placing it on his own property.1
Respondent claimed that appellants made threats against him in an effort to get him
to move the shed. His petition alleged that appellants made “uni nvited visits” to his
residence and that appellants threatened to burn the shed. The petition alleged that
respondent was afraid for his ow n safety and for the lives of his family and his livestock.
In particular, appellant expressed concern that his family could be trapped in the event of
a fire, because the area surrounding his property is wooded and emergency vehicles might
not be able to access the property. The petit ion further alleged that appellants had twice

1 Based on the transcripts of the HRO hearing, the parties appear to be involved in other
pending litigation concerning the property dispute.

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disregarded “no trespassing” signs on respondent’s property, and had threatened to return
to the property again.
The district court granted respondent an initial ex parte HRO. The ex parte HRO
prohibited appellants from direct or indirect contact with respondent, and prohibited
appellants from being within 500 feet of respondent’s home. It also prohibited appellants
from being near respondent’s job site, but without an explicit distance limitation.
Appellants requested a hearing after being served with the ex parte HRO. At the
hearing, respondent testified that Schaffer ignored his “no trespass ing” signs in a 2015
incident, came onto his property, and asked hi m to move the shed. Respondent testified
about Schaffer coming onto his property a second time in April of 2016, during which she
again asked him to move the shed in a “highly emotional rant.” Respondent further testified
that he had contact with both appellants at a meeting of the local township board in April
2016, during which respondent requested a variance for a different building, located close
to Schaffer’s father’s property line, but on his own property. Respondent testified that
Schaffer attempted to “bully” the township board; he alleged no objectionable conduct by
Siebenaler. Respondent also testified that he had contact with Schaffer during a Land Use
Management Board meeting in May 2016, wh ere Schaffer again opposed respondent’s
variance request. Finally, respondent testif ied that appellants entered his property on
October 22, 2017, ignoring his “no trespassing” signs. Respondent testified that appellants
threatened to burn down the shed during this visit.
At the contested hearing, Schaffer sought to introduce a recording of her April 2016
conversation with respondent, but the district court declined to adm it the recording into

4
evidence, reasoning that it was from a year and a half before the threats on which
respondent based his request for a restraining order. Schaffer agreed during her testimony
that she had entered respondent’s property on the dates alleged. She denied threatening to
burn down the shed. Si ebenaler acknowledged that he entered respondent’s property on
October 22, but denied that he or Schafer had threatened respondent in any way. Siebenaler
testified that he only entered respondent’s property once.
Following the hearing, the district cour t found harassment to have been proved and
issued a two-year HRO. The district court found that appellants made an uninvited visit to
respondent’s home when they entered respondent’s property on October 22, despite a no-
trespassing sign, and made threats to the pe titioner concerning “burning down” the shed.
It found that the harassment on October 22 ha d or was intended to have a substantial
adverse effect on respondent. It found no other incident of harassment. The district court
ordered appellants to remain at least 300 feet away from respondent’s home and work and
prohibited any direct or indirect contact with respondent.
This appeal followed.
D E C I S I O N
Appellants argue that the district court abused its discretion in granting respondent’s
HRO petition because the record fails to support a finding of repeated harassing conduct
which is required to support a finding of ha rassment under Minn. Stat. § 609.748 (2016).
Appellants argue that the district court found only one incident of harassing conduct, and
that the record as a whole contains only one incident that qualifies as harassment under the

5
statute. Appellants also argue that the district court erred in excluding the audio recording
Schaffer offered as evidence during the hearing.
“Ultimately, the issuance of an HRO is reviewed for abuse of discretion.” Peterson
v. Johnson, 755 N.W.2d 758, 761 (Mi nn. App. 2008). An HRO that is not supported by
sufficient evidence will be reversed. Kush v. Mathison, 683 N.W.2d 841, 844 (Minn. App.
2004). Statutory interpretation is a question of law that we review de novo. Cocchiarella
v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016). We review factual findings by the district
court for clear error. Rasmussen v. Two Harbors Fish Co. , 832 N.W.2d 790, 797 (Minn.
2013).
A district court may grant an HRO if it finds there are “reasonable grounds to believe
that the respondent has engaged in harassment. ” Minn. Stat. § 609.748, subd. 5(3). The
statute defines “harassment” as including:
[A] single incident of physica l or sexual assault, a single
incident of stalking . . . , a si ngle incident of nonconsensual
dissemination of private sexual images. . . , or repeated
instances of intrusive or unwanted acts, words, or gestures that
have a substantial adverse effe ct or are intended to have a
substantial adverse effect on the safety, security, or privacy of
another, regardless of the rela tionship between the actor and
the intended target.

Minn. Stat. § 609.748, subd. 1(a).
The HRO is a creature of st atute and requires proof of harassment as statutorily
defined. See Thompson v. Schrimsher, 906 N.W.2d 495, 498-99 (Minn. 2018) (stating that
order-for-protection relief under the Domestic Abuse Act may not be obtained unless a
petitioner first meets the statutory requirements to show that domestic abuse has occurred);

6
Anderson v. Lake, 536 N.W.2d 909, 911 (Minn. App. 1995) (reasoning that the Domestic
Abuse Act and the harassment statute are similar and “we may recognize caselaw
construing the former as applic able to the latter”). Under th e statute, a single incident of
conduct may amount to harassment if it is an act of physical or sexual assault, stalking, or
dissemination of private sexual images; othe r one-time actions are not harassment. See
Minn. Stat. § 609.748, subd. 1(a); see also Roer v. Dunham, 682 N.W.2d 179, 182 (Minn.
App. 2004) (“Because the district court iden tified only one incident of harassment, the
findings are insufficient to support the restraining order.”); Beach v. Jeschke, 649 N.W.2d
502, 503 (Minn. App. 2002) (fi nding that a district court a bused its discretion in granting
an HRO “based on a single incident of wo rds”). In the absenc e of one of the acts
specifically identified as being alone sufficient to support an HRO, a district court must
find “repeated instances” of harassing conduct before an HRO may properly issue. Minn.
Stat. § 609.748, subd. 1(a). An incident under Minn. Stat. § 609.748, subd. 1(a)(1), which
may be aggregated with other incidents to su pport a finding of harassment, must involve
“objectively unreasonable conduct or intent on the part of the harasser” and “an objectively
reasonable belief on the part of the pe rson subject to harassing conduct.” Peterson, 755
N.W.2d at 764 (citations omitted). Objectiv ely unreasonable conduct “goes beyond an
acceptable expression of outrage and civilized conduct.” Kush, 683 N.W.2d at 846.
“[I]nappropriate or argumentative statements alone cannot be considered harassment.” Id.
at 844.

7
I. The district court did not make explic it findings regarding repeated instances
of harassing conduct required by Minn. Stat. § 609.748, subd. 1(a).

We first consider whether the district c ourt’s findings are sufficient to support the
HRO. Respondent makes no claim that there was any incident of physical assault, sexual
assault, stalking, or nonconsensual dissemination of sexual images. Accordingly, the HRO
against appellants must be supported by repe ated incidents of harassing conduct. Minn.
Stat. § 609.748, subd. 1(a).
The district court found only one incident of harassing conduct by appellants: the
October 22 incident, during which it found that appellants “ignored ‘no trespassing’ signs
and entered [respondent’s] property.” Even if the October 22 incident involved objectively
unreasonable conduct or intent on the part of appellants, which had or was intended to have
a substantial adverse effect on respondent as required by Minn. Stat. § 609.748, subd. 1(a),
it was not the sort of single incident that is sufficient to support an HRO. Therefore, the
factual findings are insufficient to support a conclusion of statutory harassment upon which
an HRO may properly issue. See Roer, 682 N.W.2d at 182 (reversing an HRO when the
district court supported it with a finding of “only one incident of harassment” occurring on
a single date).
II. The record evidence is insu fficient to support an implicit finding by the district
court that repeated instances of harassing conduct occurred.

Respondent concedes both that he did not allege an incide nt of physical or sexual
assault, and that, absent an incident of phy sical or sexual assault, the grant of an HRO
requires the district court to find “repeated” instances of other prohibited acts. Respondent
asserts that the record contai ns evidence of repeated othe r acts amounting to harassment

8
that would support the district court’s grant of the HRO. On appeal, appellate courts may
consider a district court’s implicit findings of fact. Pechovnik v. Pechovnik, 765 N.W.2d
94, 99 (Minn. App. 2009). Wh ile respondent’s argument is not phrased as one that the
district court made implicit findings of rep eated instances of prohi bited acts, we read
respondent’s argument to be one that the gran t of the HRO requires the inference that the
district court did, in fact, implicitly make those findings, and that those findings are not
clearly erroneous.
Because it is not for us to find facts on appeal, we consider the entire record to
determine whether it is adequate to support an implicit finding of re peated instances of
harassing conduct.
Respondent testified to a number of interactions with appellants. In order to
determine whether the record is sufficient to support a finding of repeated incidents based
on respondent’s testimony, we must first c onsider whether any of the complained-of
incidents qualify under Minn. Stat. § 609.748, subd. 1(a), as hara ssing conduct. As
discussed, an incident under Minn. Stat . § 609.748, subd. 1(a)(1), (which may be
aggregated with other incidents to constitu te harassment) must involve “objectively
unreasonable conduct or intent on the part of the harasser” and must involve “an objectively
reasonable belief on the part of the pe rson subject to harassing conduct.” Peterson, 755
N.W.2d at 764 (citations omitted). Statem ents that are merely inappropriate or
argumentative do not rise to the level of objectiv ely unreasonable conduct. Kush, 683
N.W.2d at 846.

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Respondent testified that offensive speech and conduct occurred on four occasions
in addition to the October 22 incident. He testified that he encountered both appellants at
a township meeting in April 20 16. He testified that Schaffer entered his property during
incidents in 2015 and 2016, and that he enco untered Schaffer at a second public meeting
in 2016. None of these incidents, even if proved, qualifies as harassing conduct under
Minn. Stat. § 609.748, subd. 1(a).
Concerning the 2015 occasion wherein Sc haffer entered respondent’s property,
respondent testified that appellant Schaeffer ignored a “no trespassing sign,” “demanded”
respondent move his shed and “threatened to sue” respondent if he did not move the shed.
Respondent testified that he was “shocked and offended” by Schaffer’s words and conduct
on this occasion. Schaffer’s ac tion of entering her father’s ne ighbor’s yard to discuss a
property-line issue with that neighbor is not objectively unreasonable conduct. True,
respondent’s property was posted to prohibit trespassing, but respondent’s testimony does
not suggest that Schaffer had an intent to harass respondent, and respondent’s version of
what motivated Schaffer in these interactions is that Schaffer has an obsessive concern for
her father’s property rights. We cannot discern from this record who is right about where
the disputed shed is located relative to the property line, but the parties undeniably have a
genuine legal dispute about that . Minn. Stat. § 609.605 (2014 ), the trespass statute, does
not criminalize the entry upon “posted” property unless the property is a building, a
cemetery, a construction site, a mining site , or agricultural property complying with
particular posting requirements. None of those statutory circ umstances exist here. More
importantly, Schaffer’s action in entering respondent’s property to discuss a bona fide legal

10
dispute is not inherently un reasonable conduct. Although Schaffer threatened to sue
respondent, “a person has a right to threaten to do that which [s]he has a right to do.” Wise
v. Midtown Motors , 231 Minn. 46, 52, 42 N.W.2d 404, 407 (1950). Schafer’s conduct
during the 2015 visit does not qualify as an incident of harassing conduct under the statute.
The record also fails to support any implicit finding that Schaffer’s April 2016 visit
to respondent’s property qualifies as an incident of harassmen t under Minn. Stat.
§ 609.748, subd. 1(a). Responde nt testified that, shortly afte r a survey conducted of the
Schaffer property (of which respondent wa s aware), appellant drove past his “no
trespassing” sign, “launched into a highly emo tional rant,” and told him that he would
need to move the shed located on her father’s land or she would sue him. Schaffer also
told him he would have to move his barn that was in violation of a local ordinance requiring
that buildings be a certain di stance away from a neighbor’s property line. Respondent
testified that Schaffer “ridicule[d]” him and “i nsult[ed]” his intelligen ce. In response to
this visit, respondent said that he placed a second “no trespassing” sign near his driveway.
The district court did not find that Schaffer’s conduct or intent during this interaction
with respondent was objectively unreasonable. Schaffer has power-of-attorney for her
father. A survey had indicated that one of respondent’s buildings was on her father’s
property, and that another was impermissibly close to the property line. Threats to sue do
not constitute harassing conduct. See Wise, 231 Minn. at 52, 42 N.W.2d at 407 (reasoning
that a person has the right to threaten to take an action which she has a right to take). As
her father’s attorney-in-fact under a power-o f-attorney, Schaffer had the legal right to
attempt to enforce the now-established-by-survey property lines. Schaffer’s conduct was

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disturbing to respondent—the two of them were focused on the property-line dispute—but
neither Schaffer’s conduct nor her intent in interacting with respondent was objectively
unreasonable. The record might even support a finding that respondent was substantially
adversely affected by the incident, as evidenced by his posting a new “no trespassing” sign.
But, because Schaffer’s conduct and intent in seeking to enforce her father’s property rights
were not objectively unreasonable , the record cannot support an implicit finding that the
April 2016 incident qualifies as an incident of harassment under Minn. Stat. § 609.748,
subd. 1(a).
Finally, the record does not support any implicit finding that appellants’ conduct at
two local-government meetings in April 2016 qualify as incidents of harassment.
Respondent testified that he encountered both appellants during a township board meeting,
where he requested a variance because his barn was located 11 feet from Schaffer’s father’s
property line, where the ordinary setback requirement is 30 feet. Schaffer raised concerns
about the request and said that the board should consider that respondent’s small shed was
on her father’s property. Afte r the board approved the varian ce, respondent testified that
Schaffer tried to “bully” the board. The record does not indicate that Siebenaler took any
action at this meeting, despite being present. Next, respondent testified that he encountered
Schaffer at a land-use board meeting, during which the variance fo r the barn was again
discussed. Respondent testified that Schaffer, without Siebenaler pr esent, brought to the
attention of the land-use board the issue of respondent’s shed. Respondent did not testify
concerning if and how appellants’ actions affected him on these two occasions.

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Appellants’ actions in attending and testifying at local-government meetings do not
qualify as incidents of harassing conduct unde r Minn. Stat. § 609.74 8, subd. 1(a). The
record contains no evidence indicating that respondent had an objectively reasonable belief
that the appellants’ conduct had a substantia l adverse effect on his safety, security, or
privacy. Further, opposing a variance request at a public meeting cannot be regarded as
objectively unreasonable. The very purpose of su ch meetings is to afford a public forum
in which citizens can be heard. An individual’s participation at such meetings, discussing
matters involving that individual’s interest, is objectively reasonable. This is so even if the
person is rude or inappropriate. See Kush , 683 N.W.2d at 846 (reasoning that
“inappropriate or argumentative statements alone cannot be considered harassment”).
Moreover, the record reveals no intent by appellants to do anything other than discuss their
concerns about Schaffer’s father’s property line. While Schaffer’s comments may have
been inappropriate or marginally relevant to the dispute, they were not objectively
unreasonable under the circumstances.
The district court expressly found a single incident of harassing conduct, but that
incident was not of the sort allowed by st atute to alone support an HRO. The other
disturbing incidents which res pondent identified as amounting to repeated incidents of
harassing conduct were not found by the district court to have occurre d; and even if the
district court had accepted respondent’s te stimony concerning those other events, those
other incidents, as a matter of law, do not qualify as harassing conduct under Minn. Stat.
§ 609.748.

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The district court seems to have recognized that there is likely no good to come from
further interactions between thes e parties. We agree. None theless, because the district
court’s order relied on a single incident of harassing conduct, and because the record does
not support an implicit finding of sufficiently severe repeated incidents, we reverse the
HRO.
Because we reverse the district court’s issuance of the HR O, we do not reach
appellants’ arguments regarding the district court’s evidentiary ruling to exclude Schaffer’s
audio recording.
Reversed.