State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2105

State of Minnesota,
Respondent,

vs.

Jason Elliot Peterson,
Appellant.

Filed December 9, 2019
Reversed
Bratvold, Judge

Rice County District Court
File No. 66-CR-17-294

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Bjorkman, Judge; and
Jesson, Judge.
S Y L L A B U S
Minnesota Statutes § 609.749, subd. 2(4) (2016), which criminalizes stalking by
telephone, violates the First Amendment to the United States Constitution because it is
facially overbroad, proscribes a substantial amount of protected speech , and cannot be
remedied by narrowing its construction or severing language.

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O P I N I O N
BRATVOLD, Judge
Appellant Jason Elliot Peterson challenges his judgment s of conviction for two
counts of stalking under Minn. Stat. § 609.749, subd. 2(4) . The jury heard evidence that,
in August and September 2016 and January 2017, Peterson repeatedly called and left
voicemails for several employees of the Rice Co unty Sheriff’s Department and Social
Services Department , complaining about his 2002 family -law case and causing those
employees to feel frightened.
On appeal, Peterson contends that his conviction s must be reversed for three
reasons: (1) Minn. Stat. § 609.749, subd. 2(4), the stalking-by-telephone statute, is
unconstitutional under the First Amendment to the United States Constitution; (2) the
district court failed to obtain a valid waiver of his right to counsel; and (3) the district court
deprived him of his right to testify by excluding his testimony about his reasons for making
the telephone calls and leaving the voicemails. Peterson also argues his sentence was
improper and we must remand for resentencing. We determine the stalking-by-telephone
statute is substantially overbroad in violation of the First Amendment; we therefore reverse
Peterson’s judgment s of conviction. W e do not reach the other three issues raised in
Peterson’s appeal.
FACTS
On August 29, 2016, Peterson telephoned the Rice County Sheriff (the sheriff) and
left a voicemail message. The sheriff “immediately” returned Peterson’s call, and Peterson
began “swearing and yelling,” and threatened to “arrest” him. The sheriff ended the phone

3
call and called Peterson two days later; in that call, Peterson was “hostile” and again said
that he would “arrest” the sheriff. On September 6, 2016, Peterson called an employee at
the Minnesota Bureau of Criminal Apprehension ( BCA employee) with questions about
“arrest[ing]” the sheriff and, aga in, swore during the call; t he BCA employee reported
Peterson’s call to the sheriff.
On September 23, 2016, a Rice County Sheriff’s Deputy ( the deputy) served
Peterson at his home with legal pleadings in an unrelated civil case. After knocking on the
door and making contact with Peterson, the deputy explained he had paperwork to drop
off. Peterson became “very vocal” and stated that “me and [the sheriff] are gonna be butting
heads pretty godd -mn hard if he doesn’ t get ahold of me ” and that “[ the sheriff] can run
but he cannot f-cking hide.” The deputy reported Peterson’s statements to the sheriff. The
sheriff became concerned about his own safety and his family’s safety. He showed his wife
Peterson’s photo so she could be “on extra alert” and “take extra measures.”
Several times during January 2017, particularly on January 19 and 20, Peterson
called and left voicemails with Rice County employees. Peterson left six voicemails for a
child-protection social worker. In the voicemails, Peterson stated, “I’m coming for you r
asses,” and said he would “call the lawyer” and “have [her] ass arrested” if he did not
receive a return phone call . Peterson’s voicemails had over 20 expletives. The
child-protection social worker t estified that “each [voicemail] increased with—was more
threatening than the first.”
In late January 2017, Peterson placed phone calls to three Rice County employees.
One employee testified that Peterson’s demeanor was “angry and threatening” ; she felt

4
Peterson may come to her office and hurt someone. A second employee testified Peterson
was “extremely angry,” “swearing a lot,” stated he “would come into [their] office and
raise hell” if her supervisor “didn’t call [Peterson] back exactly at three” and “he would
kick the sheriff’s ass and [another employee’s] as well.” This employee became “concerned
for [her] coworkers and for [her]sel f.” A third employee testified that Peterson told her
over the phone “you won’t know what day or time or when I may come.” The third
employee testified she felt her personal safety was at risk ; she asked law enforcement to
escort her to and from work.
The state charged Peterson with two counts of violating Minn. Stat. § 609.749, subd.
2(4), stalking by repeatedly making telephone calls on or about September 23, 2016 (count
one); and stalking by repeatedly ma king telephone calls on or about January 26, 2017
(count two). Peterson moved to dismiss the complaint, arguing count one lacked probable
cause and that Minn. Stat. § 609.749, subd. 2(4), was constitutionally overbroad facially
and as applied to him. After a contested omnibus hearing, t he district court determined
probable cause existed, the statute was constitutional, and Peterson’s conduct involved
threats not protected by the First Amendment.
Although a lawyer represented Peterson for many pretrial proceedings,
Peterson represented himself at the two-day jury trial . The sheriff, the sheriff’s wife, the
deputy, the BCA employee, and five Rice County employees testified at trial t o the facts
summarized above. The state played for the jury the six voicemails and the deputy’s digital
recording of his encounter with Peterson.

5
Peterson testified in his own defense . Peterson admitted to threatening the sheriff
when the deputy visited his home and stated that he intended to “shake [the sheriff] up a
little bit.” When asked whether he placed the phone calls and left the alleged voicemails,
Peterson responded , “Yeah, I’m surprised you don’t have the other ones.” Peterson
admitted he swore during the phone calls , and stated he “stand[s] by” the January
voicemails. Peterson testified that “[he] did call [Rice County employees] repeatedly”
because he wanted “to get answers . . . on what happened” in his 2002 family -law case,
which resulted in changes to custody and visitation.
The jury found Peterson guilty of both counts of stalking by telephone under Minn.
Stat. § 609.749, subd. 2(4). The district court sentenced Peterson to 365 days in jail on each
count, consecutive, and stayed execution of his sentence on count two. This appeal follows.
ISSUE
Is Minnesota Statutes section 609.749, subdivision 2(4) , facially overbroad in
violation of the First Amendment and, if so, is a judicial remedy available to correct the
constitutional defect?
ANALYSIS
Peterson argues that Minnesota Statutes section 609.749, subdivision 2(4) , the
stalking-by-telephone statute, unconstitutionally restricts speech protected by the Fi rst
Amendment. In his reply brief, Peterson relies on the Minnesota Supreme Court’s recent
decision in In re Welfare of A.J.B. , 929 N.W.2d 840 (Minn. 2019) . A.J.B. was filed after
Peterson’s conviction and after Peterson appealed to this court. A.J.B. held that
Minn. Stat. § 609.749, subd. 2(6) (2014), the stalking -by-mail statute , prohibited and

6
chilled protected expression and that the statute “facially violates the First Amendment
overbreadth doctrine.” 929 N.W.2d at 856.
The state argues we should uphold the stalking-by-telephone statute based on our
decision in State v. Hall, which affirmed a conviction of stalking by telephone and held the
provision was “not unconstitutionally overbroad on its face.” 887 N.W.2d 847, 858 (Minn.
App. 2016), review denied (Minn. Feb. 22, 2017). It is true that the supreme court decision
in A.J.B., which was filed after Hall, makes no reference to our decision in Hall or to the
stalking-by-telephone statute. See A.J.B., 929 N.W.2d at 840-57. Yet, as discussed in more
detail below, the stalking-by-mail statute that the supreme court declared unconstitutional
in A.J.B. is strikingly similar to the stalking-by-telephone statute challenged in this appeal.
Compare Minn. Stat. § 609.749, subd. 2(6), with Minn. Stat. § 609.749, subd. 2(4).
Thus, we begin our analysis of the issue by discussing A.J.B. Next, we apply the
four-step overbreadth analysis and determine the stalking -by-telephone statute is
unconstitutionally overbroad and cannot be judicially rem edied. Lastly, we expressly
overrule our decision in Hall.
A.J.B. was a high school student, who created an anonymous Twitter account and
posted roughly 40 tweets within a few ho urs about a fellow student, M.B. 929 N.W.2d at
844. A.J.B.’s tweets included “cruel and egregious insults” and urged M.B. to commit
suicide. Id. at 845. The state charged A.J.B. with two counts of stalking by mail under
Minn. Stat. § 609.749, subd. 2(6) , and one count of mail harassment under Minn. Stat.

7
§ 609.795, subd. 1(3) (2014).1 See A.J.B., 929 N.W.2d at 845 . The juvenile court found
him guilty on all three charges and adjudicated him delinquent. Id. On appeal to this court,
we upheld the constitutionality of the stalking -by-mail statute. Id. See In re Welfare of
A.J.B., 910 N.W.2d 491, 502-03 (Minn. App. 2018), rev’d A.J.B., 929 N.W.2d 840.
The supreme court granted review and reversed. A.J.B., 929 N.W.2d at 845-46. The
supreme court held that the stalking -by-mail statute was unconstitutionally overbro ad
because it proscribed a substantial amount of protected speech and that it could not be
judicially remedied by narrowing its construction or severing language. Id. at 856-57.2
With A.J.B. firmly in mind, we turn to the constitutionality of the
stalking-by-telephone statute. We review the constitutionality of a statute de novo. State v.
Hensel, 901 N.W.2d 166, 170 (Minn. 2017). Generally, Minnesota Statutes are presumed
constitutional, but “statutes allegedly restricting First Amendment rights are not so
presumed.” Dunham v. Roer , 708 N.W.2d 522, 562 (Minn. App. 2006), review denied
(Minn. Mar. 28, 2006).
A statute that regulates speech “must not be overly broad.” State v. Crawley ,
819 N.W.2d 94, 102 (Minn. 2012). A statute is overbroad if “it prohibits co nstitutionally

1 A.J.B. includes a citation to the 2018 stalking-by-mail statute, but A.J.B. analyzes the
2014 stalking-by-mail statute.

2 The suprem e court also held that the mail -harassment statute, Minn. Stat. § 609.795,
subd. 1(3), is not constitutionally overbroad because it can be narrowed by severing
“problematic language.” A.J.B., 929 N.W.2d at 844, 863. Because the supreme court could
not determine whether A.J.B.’s adjudication for mail harassment was based on the severed
language, the court reversed and remanded that adjudication for further proceedings in
juvenile court. Id. at 864.

8
protected activity, in addition to activity that may be prohibited without offending
constitutional rights.” State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). The amount
of protected speech or expressive conduct that is prohibited must be substantial. Id.
Overbroad statutes have a “potential chilling effect” on “the exercise of protected speech.”
Id.; see Virginia v. Hicks, 539 U.S. 113, 119, 123 S. Ct. 2191, 2196 (2003) (“The threat of
enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech.”).
A.J.B. clarified the four steps required for an overbreadth analysis . See A.J.B. ,
929 N.W.2d at 847-48. First, we interpret the challenged statute . Id. at 847. Second, we
determine whether the statute’s “ reach is limit ed to unprotected categories of speech or
expressive conduct.” Id. Third, if we conclude that the statute is not limited to unprotected
speech or expressive conduct, then we ask whether a “substantial amount” of protected
speech is criminalized . Id. Fourth, we evaluate whether the court is able to narrow the
statute’s construction or sever specific language to cure constitutional defects. Id. at 848.
A. Interpretation of the stalking-by-telephone statute
Our goal in interpreting a statute is to ascer tain the legislature’s intent. Crawley,
819 N.W.2d at 102; see also Minn. Stat. § 645.16 (2018). We interpret the “plain and
ordinary meaning of undefined words” according to “the dictionary definitions” and “apply
them in the context of the statute.” State v. Haywood, 886 N.W.2d 485, 488 (Minn. 2016);
see also Minn. Stat. § 645.08(1) (2018) (stating “words and phrases” in statutes are to be
construed “according to their common and approved usage”).
The stalking-by-telephone provision states:

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A person who stalks another by committing any of the
following acts is guilty of a gross misdemeanor:
. . .
(4) repeatedly makes telephone calls, sends text
messages, or induces a victim to make telephone calls to the
actor, whether or not conversation ensues.

Minn. Stat. § 609.749, subd. 2 (4). “ Stalking” is defined in subdivision 1 of the same
section:
[T]o engage in conduct which the actor knows or has reason to
know would cause the victim under the circumstances to feel
frightened, threatened, oppressed, persecuted , or intimidated,
and causes this reaction on the part of the victim regardless of
the relationship between the actor and victim.
Id., subd. 1.
The statutory definition of “stalking,” however, contains several key terms that are
not defined anywhere in se ction 609.749. We therefore turn to the common meaning of
these key terms. “F rightened” is defined as “fill [ed] with fear.” The American Heritage
Dictionary of the English Language 703 (5th ed. 2011). “Threatened” means to have
“cause[ed] (someone) to feel that his or her power, social standing, or self -esteem is in
danger of being diminished. ” Id. at 1813. “Oppressed” is defined as to have “caus[ed
someone] to feel worried or depressed .” Id. at 1237. “Persecuted” means to feel
“oppress[ed] or harass [ed] with ill -treatment” or “ annoy[ed] persistently.” Id. at 1316.
Lastly, “intimidated” is defined as “[t]o make timid; fill with fear.” Id. at 918.
Reading the unambiguous language of the stalking-by-telephone statute together
with the common meaning of its terms in context, we conclude that to be convicted under
the stalking-by-telephone statute, the state must prove beyond a reasonable doubt that

10
(1) a defendant knew or had reason to know that his conduct would cause the victim to feel
fear, loss of power, worry, or ill-treated; and (2) the defendant’ s conduct caused this
reaction in the victim. The provision also describes what specific conduct amounts to the
crime of stalking by telephone: repeatedly making telephone calls, sending text messages,
or inducing a victim to call the defendant, “whether or not conv ersation ensues.” Minn.
Stat. § 609.749, subds. 1, 2(4).
As mentioned above, the stalking-by-telephone statute is similar to the
stalking-by-mail statute examined in A.J.B.3 We see four important similarities. First, t he
stalking-by-mail statute proscribes con duct similar to the stalking -by-telephone statute
because it states that a person who stalks another by “repeatedly mail[ing] or deliver[ing]
or caus[ing] the delivery by any me ans, including electronically, of letters , telegrams,
messages, packages . . . or any communication made through any available te chnologies
or other objects ” is guilty of a gross misdemeanor. Minn. Stat. § 609.749, subd. 2(6).
Second, the stalking-by-mail statute and the stalking-by-telephone statute both require the
conduct to be done “repeatedly,” defined as “occurring again and again.” American
Heritage, supra at 1489; State v. Collins, 580 N.W.2d 36, 42 (Minn. App. 1998) (defining
repeatedly as “more than once” in Minn. Stat. § 609.749), review denied (Minn. July 16,
1998).

3 We note th at the legislature amended section 609.749 and made those amen dments
effective July 1, 2019. 2019 Minn. Laws 1st Spec. Sess. ch. 5, art. 2, §§ 17-21, at 967-71.
The 2019 amendments changed “stalking” to “harass” in subdivision one and “stalks” to
“harasses” in subdivision two and became effective after A.J.B. was decided on June 19,
2019. Id. at 967-68. No other substantive changes were made. We conclude that the 2019
amendments do not affect our analysis of the issue on appeal.

11
Third, the stalking-by-mail statute and the stalking-by-telephone statute both have
the same mens rea element, which A.J.B. held “is broad.” 929 N.W.2d at 850. The “knows
or has rea son to know” standard is equivalent to negligence, and A.J.B. held that this
standard “means a person may be convicted” of stalking-by-mail “even though the person
does not intend or even know that his communication would frighten, threaten, oppress,
persecute, or intimidate the victim.” Id. Fourth, A.J.B. also held that subdivision one
incorporates an actus rea element with “several broad and unqualified terms: frighten,
threaten, oppress, persecute, or intimidate.” Id. at 854. Thus, the stalking -by-mail a nd
stalking-by-telephone statutes both require the state to prove the victim’s reaction, which
A.J.B. held “limits the statute.” Id. at 850.
B. The stalking-by-telephone statute and protected speech
In the second step of the overbreadth analysis , we consider whether the
stalking-by-telephone statute criminalizes speech that is protected by the First Amendment.
A.J.B. held that the stalking-by-mail provision is “closely tethered to speech or expressive
activities” because the statute criminalizes stalking by letters, telegrams, messages, and
“any communication,” all of which are “purely express ive.” 929 N.W.2d at 849. The
stalking-by-telephone provision is somewhat different. While it criminalizes text messages
and telephone calls that are “purely expre ssive” and plainly protected by the First
Amendment, it also criminalizes telephone calls “whether or not conversation ensues,” and
thus includes “missed,” “hang up,” or “breather” calls. Minn. Stat. § 609.749, subd. 2(4).
When preceded by a telephone call or text message that informs the victim who is calling
or why, we conclude that a missed call may also constitute expressive conduct.

12
We conclude that the stalking-by-telephone statute has broad language that restricts
protected speech for t hree reasons. First, the stalking-by-telephone provision does not
criminalize only speech linked to criminal conduct because it criminalizes repeated
telephone calls and text messages regardless of the content of the telephone call or text
message. And telephone calls are a common way of expressing political and other protected
communications. The supreme court identified the same defect in the stalking -by-mail
statute. See A.J.B., 929 N.W.2d at 852 (holding stalking-by-mail statute “criminalizes the
communication itself; it does not criminalize the communication because its only purpose
is to induce or commence a separate crime”).
We recognize that the stalking-by-telephone statute also criminalizes stalking
conduct, and the supreme court has upheld statute s that criminalize conduct when it is
“directly linked to and designed to facilitate the commission of a crime.”
State v. Washington-Davis, 881 N.W.2d 531, 538 (Minn. 2016) ( upholding
promotion-of-prostitution statute because it regulates spe ech “aimed at furthering the
commission of a crime” ); see also State v. Muccio, 890 N.W.2d 914, 924 (Minn. 2017)
(upholding solicitation-of-children statute because it regulates communication that “is both
linked to and designed to facilitate the commission of the later crime”). But, based on the
supreme court’s analysis in A.J.B., we conclude that the stalking-by-telephone statute is
not limited to criminalizing conduct directly linked to facilitating a crime.4

4 Some of Peterson’s statements may amount to “true threats,” and thus, fall outside of First
Amendment protection. True threats are “statements where the speaker means to
communicate a serious expression of a n intent to commit an act of unlawful violence to a
particular individual or group of individuals.” Virginia v. Black, 5 38 U.S. 343, 359,

13
Second, the stalking-by-telephone statute has a mens rea element that is satisfied by
proof of negligence and therefore criminalizes both intentional and unintentional speech.
A.J.B. examined the same mens rea language used in the stalking-by-mail statute and held
that “a person may be convicted” under this negligence standard “even though the person
does not intend or even know that his communication would frighten, threaten, oppress,
persecute, or intimidate the victim.” 929 N.W.2d at 850. Moreover, the negligence standard
expressly references “under the circumstances,” which, A.J.B. reasoned, means “that what
the actor should have known about the victim’s reaction must be judged relative to the
existing conditions and the context of the communications (including the victim’s specific
circumstances) when mad e.” Id. By incorporating a negligence standard, the
stalking-by-telephone statute reaches a wide range of protected communications that have
unintended, albeit reasonably foreseeable, consequences.
Third, the stalking-by-telephone statute requires the stat e to prove the victim’s
reaction to the defendant’s stalking was “to feel frightened, threatened, oppressed,
persecuted, or intimidated. ” Minn. Stat. § 609.749, subd. 1. While a burden on the state,
this aspect is also concerning because these terms are not only undefined but also broad.
The supreme court has determined that a similar term —“disturb”—did not “place any
meaningful limitation on the statute’s scope.” Hensel, 901 N.W.2d at 172 (considering

123 S. Ct. 1536, 1548 (2003); see Crawley, 819 N.W.2d at 118 (recognizing true threats as
a category of unprotected speech). We note that true threats may be prosecuted under other
subdivisions. See Minn. Stat. § 609.749, subd. 2(1) ( stating an individual is guilty of
stalking when he or she “directly or indirectly, or through third parties, manifests a purpose
or intent to injure the person, property, or rights of another by th e commission of an
unlawful act”).

14
“disturb” in the disorderly-conduct statute and severing the provision as overly broad in
violation of the First Amendment). Thus, requiring proof of the victim’s reaction does not
restrict the protected communications that the stalking -by-telephone statute reaches; it is
only an ancillary requirement.
And by requiring proof of the victim’s reaction , the stalking -by-telephone statute
allows the state to offer evidence of a broad subjective harm. A.J.B. examined the same
subjective harm element and was troubled because “[t]he victim’s feeling of fright, threat,
oppression, persecution, or intimidation nee d not be objectively reasonable .” A.J.B.,
929 N.W.2d at 850; see also id. at 855 (noting federal stalking statute has more restrictive
“substantial” harm element).
Because the stalking-by-telephone provision is not limited to prohibiting conduct
directly linked to criminal activity, reaches negligent expressive communication such as
telephone calls and text messages, and allow s the state to prove its case by a victim’s
subjective reaction to the defendant’s c onduct, we conclude that the provision prohibits
speech protected by the First Amendment.
C. Overbreadth concern with the stalking-by-telephone statute
Because the challenged statute criminalizes protected speech, we move to the third
step: whether the statute prohibits “a substantial amount of constitutionally protected
speech.” See Washington-Davis, 881 N.W.2d at 539. We conclude that it does.
A scenario that is parallel to one discussed in A.J.B. is of concern here . An irate
constituent makes repeated phone calls to her elected representative to complain about the
legislator’s failure to enact gun control and to announce she will defeat the legislator in the

15
next election, intending to cause or knowing her conduct may cause the legislator to feel
“frightened, threatened, oppressed, persecuted or intimidated .” See A.J.B., 929 N.W.2d at
853. Even if the constituent leaves only one voice message to this effect and then follows
up with incomplete or missed calls and no additional voice messages, the constituent may
be charged with stalking-by-telephone. Yet this type of political speech “reside[s] at the
core of protected First Amendment speech.” See id.
Other examples illustrate the sweeping reach of the stalking-by-telephone statute. A
resident may be charged with stalking by telephone for repeatedly telephoning a business
to complain about pollution and to announce a social media campaign boycotting their
products, where the resident “knows or should know that the complaint [] will cause the
business owner to suffer emotional distress due to the economic impact of a possible
boycott.” See People v. Relerford , 104 N.E.3d 341, 354 (Ill. 2017) ( vacating criminal
convictions and holding stalking and cyberstalking laws are facially overbroad under the
First Amendment).
Similarly, a worried parent who repeatedly telephones or sends text messages to his
child who “has recently moved out of the family home ,” could be prosecuted under the
stalking-by-telephone statute even if the parent did not intend to make the child feel
“oppressed, persecuted, or intimidated ,” but the child felt oppressed, and even if no
conversation ensued between them. See Provo City v. Whatcott , 1 P.3d 1113, 1115 (Utah
Ct. App. 2000). The parent’s “conscious disregard of the substantial likelihood that the call
would annoy [the child] would bring the call within the statute’s ambit.” Id. (reversing

16
criminal conviction and holding telephone harassment law is facially overbroad under the
First Amendment).
Thus, the supreme court’s conclusion in A.J.B. about the stalking-by-mail statute
applies to the stalking-by-telephone statute: “Due to the substantial ways” in which the
stalking-by-telephone provision “can prohibit and chill protected expression, we conclude
that the statute facially violates the First Amendment overbreadth doctrine.” See A.J.B.,
929 N.W.2d at 856; see also Machholz, 574 N.W.2d at 419 (“A statute should only be
overturned as facially overbroad when the statute’s overbreadth is substantial.”).
D. Judicial remedy
In the fourth step of the overbreadth analysis , we consider whether we can narrow
the statute’s construction or sever problematic language to save the statute. A.J.B., 929
N.W.2d at 848. In its brief to this court, the state does not suggest that we narrow the
construction or sever specific language.
A statute will not be struck down “when a limiting construction has been or could
be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct.
2908, 2916 (1973); see also Hensel, 901 N.W.2d at 175 (stating a narrowing construction
is appropriate “if it remedies the statute’s constitutional defects”) . A statute’s offending
language may be severed unless the “valid provisions” and the “void provisions” are “so
essentially and inseparably connected,” or if the “remaining valid provisions, s tanding
alone, are incomplete and are incapable of being executed in accordance with the
legislative intent.” State v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014).

17
In A.J.B., the supreme court was unable to apply a narrowing construction or sever
language to save the stalking-by-mail statute. 929 N.W.2d at 857. We are similarly unable
to save the stalking-by-telephone statute for two reasons. First, we would have to alter the
negligent-mens rea standard. See Minn. Stat. § 609.749, subd. 1. But doing so would also
change the mens rea standard for the six remaining types of stalking prohibited by the
legislature. Id., subd. 2. A.J.B. rejected this option and we reject it here. 929 N.W.2d at 856
(“We conclude that there are legitimate reasons to doubt that the Legislature w ould have
enacted Minn. Stat. § 609.749, subd. 1, without the negligence standard.”).
Second, the aim of a narrowing construction is to construe the statute in a way that
differentiates “between conduct and content” so that only conduct itself, and not the
conduct’s expression, is criminalized. Hensel, 901 N.W.2d at 178 . The supreme court’s
analysis in Hensel is instructive. Th e court examined the disorderly -conduct statute and
held that language prohibiting “disturbances” at an assembly or meeting is overly broad
under the First Amendment because protected expression includes disturbing statements at
assemblies or meetings. Id.
The supreme court considered whether it could limit the statute’s construction to
criminalize only conduct that disturbs a meeting. Id. Because the disorderly-conduct statute
included a negligence standard for the mens rea element, the court concluded that a
conduct-only construction would not save the statute because it “may deter individuals
from engaging in expressive conduct protected by the First Amendment.” Id. In other
words, the supreme court concluded that criminal sanctions for disturbing conduct would
chill protected expression at assemblies and meetings. See id.

18
A narrowing construction of the stalking-by-telephone statute that separates conduct
from content fails for the same reasons that the supreme court articulated in Hensel. Doing
so would not alter the negligence mens rea standard, thus a narrowing construction would
not alleviate the statute’s chilling effect. See id. at 178.
To be clear, we acknowledge that Peterson’s behavior is upsetting and
inappropriate, and that the state has an interest in prohibiting this type of conduct. But the
state may not do so by criminalizing a substantial amount of protected speech in an overly
broad statute. We conclude that w e are unable to limit the scope of the
stalking-by-telephone statute by narrowing its constructi on or severing language.
Therefore, we hold that Minn. Stat. § 609.749, subd. 2(4), is unconstitutionally overbroad.
See State v. Turner , 864 N.W.2d 204, 210 (Minn. App. 2015) (“A statute is invalid if its
terms leave no room for a narrowing construction.”).
E. A.J.B.’s impact on our decision in Hall
The district court rejected Peterson’s challenge and upheld the constitutionality of
the stalking-by-telephone statute in reliance on this court’s decision in Hall. 887 N.W.2d
at 847. While Peterson’s case was on appeal, the supreme court issued its decision in
A.J.B. We are bound by supreme court precedent. See State v. Curtis , 921 N.W.2d 342,
346 (Minn. 2018) (“The court of appeals is bound by supreme court precedent, as it has
repeatedly acknowledged.”). “[W]hen the supreme court has already construed a statute,
this court is bound by that interpretation.” State v. Rohan , 834 N.W.2d 223, 227 (Minn.
App. 2013), review denied (Minn. Oct. 15, 2013). Having car efully compared the
stalking-by-mail statute discussed in A.J.B. with the stalking -by-telephone statute

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challenged in this appeal , we recognize that Hall upheld the stalking -by-telephone
provision for reasons later rejected by the supreme court. See A.J.B., 929 N.W.2d at 853-
54. Therefore, we expressly overrule Hall.
D E C I S I O N
Minn. Stat. § 609.749, subd. 2(4), is unconstitutionally overbroad because it
prohibits a substantial amount of protected speech in violation of the First Amendment,
and it is not susceptible to a judicial remedy. Therefore, we invalidate the statute and
reverse the judgment s of conviction . Because we determine the stalking-by-telephone
statute is overbroad on its face, we need not reach the other issues Peterson raises in support
of reversal or resentencing.
Reversed.