State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0923

State of Minnesota,
Respondent,

vs.

Rylan Dakota Andersen,
Appellant.

Filed June 8, 2020
Reversed
Johnson, Judge

Blue Earth County District Court
File No. 07-CR-18-1754

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Heidi J.K. Fessler, St. Paul, Minnesota; and

James J. Kuettner, Mankato, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and Tracy
M. Smith, Judge.
S Y L L A B U S
Section 609.748, subd ivision 6, of the Minnesota Statutes, which sets forth the
crime of violating a harassment restraining order , does not expressly provide for strict
liability and is not a public -welfare offense. Thus, i n a prosecution for violating a
harassment restraining order, the state must prove that the defendant knew all the facts that
would cause him or her to be in violation of the harassment restraining order.

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O P I N I O N
JOHNSON, Judge
Rylan Dakota Andersen was served with a harassment restraining order (HRO) that,
among other things, prohibited him from contacting the petitioner and from being within
100 feet of her residence. But the location of the petitioner’s residence was d eemed
confidential and was not disclosed in the HRO . The state later charged Andersen with
violating the HRO after he walk ed within 100 feet of the apartment building in which the
petitioner lived. After a court trial, the district court found Andersen guilty. But the district
court specifically found that the state did not prove that Andersen knew the location of the
petitioner’s residence. The district court reasoned that, as a matter of law, the state is not
required to prove that Andersen knew the l ocation of the petitioner’s residence. We
conclude that proof of such knowledge is required. Therefore, we reverse the conviction.
FACTS
Andersen and M.L.B. were students at Minnesota State University , Mankato
(MSU), majoring in similar subjects. For a period of time, t hey had a friendship, but in
August 2017, M.L.B. petitioned the Blue Earth County District Court for an HRO on the
ground that Andersen had harassed her . After an August 18, 2017 hearing at which
Andersen appeared, the district court granted M.L.B.’s petition and ordered relief for a
period of approximately one year. Paragraph 1 of the HRO provides as follows:

3
The request for relief is granted and:

A. Respondent shall not harass Petitioner.

B. Respondent shall have no direct or indir ect
contact with Petitioner, including any visits to or phone calls
to the protected person, contact via electronic means such as
email or social networking sites, threats or assaultive behavior
to the protected person, damaging or stealing property
belonging to the protected person, breaking into and entering
the protected person ’s residence, and/or taking pictures of a
protected person without permission of Petitioner.

C. Respondent is prohibited from being within 100
feet of Petitioner’s home, the address of which is confidential.

D. Respondent is prohibited from being within 100
feet of Petitioner’s job site at [address is stated in the HRO but
is redacted from this opinion].

E. Respondent is prohibited from being on the
campus of Minnesota State University-Mankato, in Mankato,
Minnesota, with the following exceptions:

a. Respondent may be on the campus of
MSU—Mankato to attend classes, including reasonable
presence on campus to accommodate attendance at and
transport to and from classes.

b. Respondent may be on the campus of
MSU—Mankato to attend public events; however,
Respondent must make all reasonable efforts to avoid
direct contact with Petitioner at such events.

c. If contacted by an official of MSU —
Mankato with regard to any changes in class schedules,
Respondent will cooperate with such official in
changing his class schedule in order to avoid having any
classes with Petitioner.

In April 2018, M.L.B. lived in an apartment in the multi-building Highland Hills
apartment complex, which is within walking distance of the MSU campus . The complex

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includes four apartment buildings surrounding a grassy courtyard. On the afternoon of
April 24, 2018, M.L.B.’s roommate and another student saw Andersen walk through the
apartment complex in the direction of the building in which M.L.B. lived, walk across the
grassy courtyard, and then turn around and leave the complex . Both students recognized
Andersen and knew that M.L.B. had obtained an HRO that prohibited him from being near
her reside nce. M.L.B.’s roommate called 911 and also called M.L.B. to alert her to
Andersen’s presence at the apartment complex.
Officer McClinton of the City of Mankato Police Department responded to the 911
call. M.L.B.’s roommate and the other student showed Officer McClinton where they had
seen Andersen and pointed out M.L.B.’s apartment building. Based on the students ’
accounts, Officer McClinton estimated that Andersen was approximately 30 feet away
from M.L.B.’s apartment building. The two students told Officer McClinton that Andersen
appeared to recognize them and then quickly changed direction and walked toward the
university campus. Officer McClinton also interviewed Andersen, who explained that he
was walking through the apartment complex to go to a nearby restaurant for lunch but then
changed his mind and decided to go to a different restaurant that is closer to campus .
Andersen confirmed that he w as aware of the HRO but said that he did not know that
M.L.B. lived in the Highland Hills complex.
One day later, the state charged Andersen with two crimes. The state later filed an
amended complaint, which alleged two misdemeanor violations of the HRO, in violation
of Minn. Stat. § 609.748, subd. 6(b) (2016) : one occurring on April 24, 2018 , and one
occurring on a later date.

5
The case was tried to the district court on one day i n February 2019 . Andersen
stipulated to the existence of the HRO and stipulated that he was aware of it. The state
introduced 12 exhibits and the testimony of five witnesses: M.L.B., the two students who
saw Andersen at the Highland Hills complex on April 24, 2018, Officer McClinton, and a
university employee who performed an internal investigation. Andersen did not testify and
did not present any other evidence.
In his closing argument, Andersen’s attorney argued, in part, that the state had not
proved that Andersen knew where M.L.B. lived. After closing arguments, the district court
questioned counsel as to whether the state is required to prove that Andersen knew the
location of M.L.B.’s residence. The district court asked counsel to submit supplemental
briefing on that issue, and they did so. In March 2019, the district court found Andersen
guilty on count 1, the charge relating to April 2 4, 2018, and not guilty on count 2, the
charge relating to a later date . The district court imposed a sentence of three days in jail,
with credit for time served, and a $100 fine.
In June 2019, Andersen filed a notice of appeal. Five days later, t he district court
filed an order w ith specific findings of fact, as permitted by rule 26.01, subdivision 2(c),
of the rules of criminal procedure. The district court found that Andersen was within 100
feet of M.L.B.’s residence on April 24, 2018. The district court also found that
“Defendant’s explanation that he was walking in the area for the purpose of going to lunch
[is] credible.” The district court further found that the state did not prove beyond a
reasonable doubt that Andersen knew where M.L.B. resided on April 24, 2018 , and that

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“the evidence does not prove that Defendant had notice or knowledge of the location of
[M.L.B.’s] residence.”
ISSUE
If the state seeks to prove that a defendant committed the crime of violating a
harassment restraining order by being within a certain distance of a protected person ’s
residence, must the state prove that the defendant knew the location of the protected
person’s residence?
ANALYSIS
Andersen argues that the evidence is insufficient to sustain his conviction.
Andersen’s argument is not focused on the quantum and quality of the evidence; rather, it
is focused on what the state is required to prove to establish his guilt. In such an appeal,
this court’s task is to ascertain the applicable law. In doing so, we apply a de novo standard
of review to the district court ’s interpretation of the applicable law. See State v. Dorn ,
887 N.W.2d 826, 830 (Minn. 2016).
A.
“A person who is a victim of harassment may seek a restraining order from the
district court . . . .” Minn. Stat. § 609.748, subd. 2 (201 6). In this context, harassment is
defined by statute to include, among other actions, “a single incident of physical or sexual
assault” and “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. ” Id., subd. 1(a)(1) ; see also Peterson v. Johnson ,
755 N.W.2d 758, 761-62 (Minn. App. 2008) . Upon the filing of a petitio n, and after a

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hearing, a district court “may issue a restraining order that . . . (1) orders the respondent to
cease or avoid the harassment of another person; or (2) orders the respondent to have no
contact with another person.” Minn. Stat. § 609.748, subd. 5(a); see also id., subd. 3. Such
a restraining order is typically called a harassment restraining order , or HRO.1 See, e.g.,
Crowley v. Meyer, 897 N.W.2d 288, 290 (Minn. 2017).
The issuance of an HRO in a civil proceeding may lead to subsequent criminal
charges if the respondent “knows of the order” and violates it. Minn. Stat. § 609.748,
subd. 6(b). “A person who violates a restraining order . . . is subject to” criminal penalties.
Id., subd. 6(a). Any violation of an HRO is at least a misdemeanor. Id., subd. 6(b). If a
person violates an HRO “within ten years of a previous qualified domestic violence-related
offense conviction or adjudication of delinquency, ” the violation is a gross misdemeanor.

1We note that the HRO statute does not expressly authorize a district court to issue
an HRO that prohibits the respondent from being near the residence of the petitioner. Such
a statutory provision is , however, found in a different but related statute, the Domestic
Abuse Act, Minn. Stat. § 518B.01 (2020). Under that act, if there has been domestic abuse
between members of a family or household, Minn. Stat. § 518B.01, subd. 2(a), and if one
member of the family or household petitions for an order for protection (OFP), id., subd.
4(a), a district court may, among other things, “exclude the abusing party from the dwelling
which the parties share or from the residence of the petitioner [or] exclude the abusing
party from a reasonable area surrounding the dwelling or residence, which area shall be
described specifically in the order ,” id., subd. 6(a)(2) -(3) (emphasis added). The HRO
statute, in contrast, provides only that a district court “may issue a restraining order that
. . . (1) orders the respondent to cease or avoid the harassment of an other person; or
(2) orders the respondent to have no contact with another person.” Minn. Stat. § 609.748,
subd. 5(a). Because this appeal arises from Andersen’s criminal conviction, not from the
issuance of the HRO, we express no opinion as to whether p aragraph 1.C. of the HRO is
authorized by section 609.748, subdivision 5(a). We assume without deciding that
paragraph 1.C. of the HRO is a permissible means of ordering Andersen to have no contact
with M.L.B.

8
Id., subd. 6(c). And if certain other aggravating factors are present, the violation is a felony.
Id., subd. 6(d).
In this case, the state charged Andersen with a misdemeanor. The state alleged that,
on April 24, 2018, Andersen violated paragraph 1.C. of the August 18, 2017 HRO, which
“prohibited [him] from being within 100 feet of Petitioner’s home, the address of which is
confidential.” The district court found Andersen guilty despite specifically finding that the
state did not prove beyond a reasonable doubt that Andersen knew where M.L.B. lived on
April 24, 2018, and despite specifically finding that Andersen did not have notice or
knowledge of the location of M.L.B.’s residence. Because the state has not challenged the
district court’s specific findings of fact in any way, we take them as given. The question
on appeal is whether the state was required to prove that Andersen knew the location of
M.L.B.’s residence when he walked through the Highland Hills apartment complex on
April 24, 2018.
B.
The statute setting forth the offense of whic h Andersen was convicted does not
expressly require the state to prove that a defendant knew the location of a place where the
defendant was prohibited from being present. The pertinent parts of the statute state, “A
person who violates a restraining orde r issued under this section is subject to [criminal]
penalties,” and “when a temporary restraining order or a restraining order is granted under
this section and the respondent knows of the order, violation of the order is a
misdemeanor.” Minn. Stat. § 609.748, subd. 6(a), (b).

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Even in the absence of statutory language expressly requiring the state to prove that
a defendant knew a particular fact, the courts of Minnesota and other states, as well as the
federal courts, generally have imposed such a requirement as a matter of common law. Our
supreme court has explained the historical background in a way that is particularly useful
to our resolution of this appeal:
Mens rea is the element of a crime that requires “the
defendant know the facts that make h is conduct illegal. ”
Staples v. United States , 511 U.S. 600, 605, 114 S. Ct. 1793,
1797 (1994). The mens rea requirement is “firmly embedded”
in the common law. Id. “[T]he existence of a mens rea
requirement is the rule of, rather than the exception to , the
principles of Anglo-American criminal jurisprudence.” United
States v. United States Gypsum Co. , 438 U.S. 422, 436, 98
S. Ct. 2864, 2873 (1978) (quotation omitted) . Statutes that
dispense with mens rea and “do not require the defendant to
know the facts that make his conduct illegal ” impose strict
criminal liability. Staples, 511 U.S. at 606, 114 S. Ct. at 1797.
The Supreme Court of the United States has stated that
“offenses that require no mens rea generally are disfavored. ”
Id. (citing Liparota v. United States , 471 U.S. 419, 426, 105
S. Ct. 2084, 2088 (1985)).

Based on the strength of the common law rule requiring
a mens rea element in every crime, the Supreme Court has
determined that statutory silence is typically insufficient to
dispense with mens rea. When a criminal statute is silent as to
a mens rea requi rement, this silence “does not necessarily
suggest that Congress intended to dispense with a conventional
mens rea element. ” Staples, 511 U.S. at 605, 114 S. Ct. at
1797. Instead, some positive indication of legislative intent is
required to dispense with mens rea. See id. at 620, 114 S. Ct.
at 1804 (stating that if Congress had intended to impose strict
liability, “it would have spoken more clearly to that effect ”);
Gypsum, 438 U.S. at 438, 98 S. Ct. at 2874 (“Certainly far
more than the simple omission of the appropriate phrase from
the statutory definition is necessary to justify dispensing with
an intent requirement.”).

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. . . .

The Supreme Court has recognized that in limited
circumstances a legislature may dispense with mens rea
through silence —in statutes creating “public welfare ”
offenses. See Staples, 511 U.S. at 606-07, 114 S. Ct. at 1797-
98. For such offenses, a legislatu re may “impose a form of
strict criminal liability through statutes that do not require the
defendant to know the facts that make his conduct illegal.” Id.
at 606, 114 S. Ct. at 1797. When interpreting public welfare
statutes, the Court “infer[s] from silence that Congress did not
intend to require proof of mens rea to establish an offense.” Id.

State v. Ndikum, 815 N.W.2d 816, 818-19 (Minn. 2012).
Thus, the general common-law rule that proof of mens rea is required in a criminal
prosecution applies unless one of two exceptions applies. See id. The first exception
applies if the statute setting forth the offense clearly provides that the state need not prove
mens rea with respect to any or all of the elements of the offe nse. See id. The second
exception applies if the offense charged is within th e category of offenses called “public
welfare offenses.” See id. at 819-20.
To resolve the issue raised by Andersen on appeal, we must consider whether the
offense of which Andersen is convicted is within either exception to the general common-
law rule that proof of mens rea is required.
C.
We first consider whether the statute setting forth the offense satisfies the first
exception by clearly providing that the state need not p rove mens rea with respect to any
or all of the elements of the offense. See id. at 818-19. Under the general common -law
rule, there is a strong presumption that all crimes carry a mens rea element. Id. at 818.

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Accordingly, if the legislature intends t o create a strict-liability offense, it “should say so
directly and unequivocally.” In re Welfare of C.R.M ., 611 N.W.2d 802, 805, 809 (Minn.
2000).
Nothing in section 609.748, subdivision 6, speaks directly to the issue of mens rea.
The statute does not expressly provide that the state is relieved of its obligation to prove a
defendant’s knowledge of the facts that make his or her actions a crime. As the United
States Supreme Court has stated in explaining the federal common-law rule, “far more than
the simple omission of the appropriate phrase from the statutory definition is necessary to
justify dispensing with an intent requirement.” United States v. U.S. Gypsum Co., 438 U.S.
422, 438, 98 S. Ct. 2864, 2874 (1978). Rather, “some positive indication of legislative
intent is required to dispense with mens rea.” Ndikum, 815 N.W.2d at 818-19. In this case,
the statutory silence indicates that the legislature did not intend to dispense with the mens
rea requirement with respect to the offense of violating an HRO.
Notwithstanding the absence of any language in the statute concerning mens rea,
the state contends that the legislature has “made crystal-clear its intent that HRO violations
do not require the defendant to know he is in violation. ” The state’s contention is based
on an amendment to the next two paragraphs of the same subdivision of the statute, which
govern prosecutions for gross -misdemeanor and felony violations of an HRO . Before
2013, those paragraphs provided that a respondent must “knowingly violate” an HRO to
be found guilty of a gross misdemeanor or a felony. Minn. Stat. § 609.748, subd. 6(c)-(d)
(2012). In State v. Gunderson, 812 N.W.2d 156 (Minn. App. 2012) , which arose from a
felony-level violation of an HRO, this court concluded th at the district court erred by not

12
instructing the jury on the “knowingly” element of th e offense. Id. at 1 61-62. The
following year, the legislature and the governor amended paragraphs (c) and (d) by deleting
the word “knowingly” from those two paragraphs. 2013 Minn. Laws. ch. 47, § 4, at 206.
By referring to this amendment, the state apparently contends that the legislature’s deletion
of the “knowingly” requirement from paragraphs (c) and (d), as well as the consistent
absence of the word in p aragraphs (a) and (b), indicates that the legislature intended to
relieve the state of the obligation to prove any knowledge other than knowledge of the
HRO, which is required by paragraph (a).
The state’s argument appears to implicate the canon of statutory interpretation that
the meaning of a statute sometimes may be discerned by referring to former versions of the
statute. See, e.g., Auto Owners Ins. Co. v. Perry, 749 N.W.2d 324, 328 (Minn. 2008); State
v. Holmes, 787 N.W.2d 617, 622-23 (Minn. App. 2010). But that canon and other canons
generally must yield to the longstanding common-law presumption that a mens rea
requirement is inherent in every crime, a presumption that is, in effect, a substantive canon
of statutory interpre tation. See, e.g., Rehaif v. United States , 139 S. Ct. 2191, 2195 -99
(2019); Ndikum, 815 N.W.2d at 819; State v. Al-Naseer, 734 N.W.2d 679, 683-86 (Minn.
2007); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 303-12 (2012). In this case, the common-law presumption leads to the
conclusion that the legislature, which is presumed to be aware of the presumption, did not
intend to relieve the state of the need to prove mens rea.
Thus, the statute is not within the first exception to the general common -law rule
that proof of mens rea is required.

13
D.
We next consider whether the statute setting forth the offense satisfies the second
exception on the ground that the offense is within the category of offenses known as “public
welfare offenses.” See Ndikum, 815 N.W.2d at 819-20.
The United States Supreme Court first recognized the existence of “public welfare
offenses” in Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240 (1952). The Court
explained that, in the modern era, states have deviated from the general common-law rule
requiring mens rea due to the increasing need for government regulation of mechanized
forms of industry, new sources of energy, greater volumes and speeds of traffic, greater
population density in cities, and wider distribution of consumer goods affecting health and
safety. Id. at 253-55, 72 S. Ct. at 244-45. The risks and dangers of these developments led
to “increasingly numerous and detailed regulations which heighten the duties of those in
control of particular industries, trades, properties or activities that affect public health,
safety or welfare. ” Id. at 254, 72 S. Ct. at 245. These modern regulations usually are
enforced only with “strict civil liability ” but, with increasing frequency, “lawmakers . . .
have sought to make such regulations more effective by invoking criminal sanctions to be
applied by the familiar technique of criminal prosecutions and convictions.” Id. at 254-55,
72 S. Ct. at 245-46. “Many violations of such regulations result in no direct or immediate
injury to person or property but merely create the danger or probability of it which the law
seeks to minimize,” and lawmakers might choose to criminalize violations because “their
occurrence impairs the efficiency of controls deemed essential to the social order as
presently constituted.” Id. at 255-56, 72 S. Ct. at 246. “Hence, legislation applicable to

14
such offenses, as a matter of policy, does not specify intent as a necessary element.” Id. at
256, 72 S. Ct. at 246. Proof of mens rea is not required in such cases because “[t]he
accused, if he does not will the violation, usually is in a position to prevent it with no more
care than society might reasonably expect and no more exertion than it might reasonably
exact from one who assumed his responsibilities ,” and because “penalties commonly are
relatively small, and conviction does no grave damage to an offender ’s reputation.” Id. at
256, 72 S. Ct. at 246. Consequently, “courts have turned to construing statutes and
regulations which make no mention of intent as dispensing with it and holding that the
guilty act alone makes out the crime. ” Id. at 256, 72 S. Ct. at 246. The United States
Supreme Court has emphasized the regulatory nature of public-welfare offenses by
describing them as “cases involving statutory provisions that form part of a ‘regulatory’ or
‘public welfare’ program.’” Rehaif, 139 S. Ct. at 2197; see also C.R.M., 611 N.W.2d at
806 (referring to “‘public welfare’ or ‘regulatory offenses’”).
In Minnesota, the supreme court and this court have recognized that certain crimes
arising from regulatory schemes fall within the “public welfare” or “regulatory” category.
See State v. Loge , 608 N.W.2d 152, 157-59 (Minn. 2000) (keeping open bottle of
intoxicating liquor in automobile on public highway); State v. Schwartz, ___ N.W.2d ___,
___, 2020 WL 1845250, at *4 (Minn. App. Apr. 13, 2020) (driving motor vehicle while
impaired by controlled substance) , pet. for review filed (Minn. May 13, 2020) ; State v.
Rohan, 834 N.W.2d 223 , 230 (Minn. App. 2013) (serving alcohol to underage person in
bar or restaurant), review denied (Minn. Oct. 15, 2013); State v. Mayard, 573 N.W.2d 707,

15
709-10 (Minn. App. 1998) (failing to provide proof of insurance of vehicle), review denied
(Minn. Mar. 19, 1998).
The most recent supreme court opinion in Minnesota on the subject arose from a
prosecution for gross-misdemeanor possession of a pistol in public without a permit.
Ndikum, 815 N.W.2d at 817, 820-22. The defendant in that case testified that he did not
know that there was a pistol in the briefcase he was carrying when he entered a courthouse.
Id. at 817. On appeal, he challenged the jury instructions, which relieved the state of the
obligation to prove that he knew that he was carrying a pistol. Id. at 818. The supreme
court reviewed the traditional common -law rule concerning mens rea as well as the t wo
exceptions to the rule, which are described above. Id. at 818-20. The supreme court
focused on the exception for public -welfare offenses, explaining that, “in limited
circumstances a legislature may dispense with mens rea through silence ” because “[f]or
such offenses, a legislature may ‘impose a form of strict criminal liability through statutes
that do not require the defendant to know the facts that make his conduct illegal. ’” Id.
at 819 (quoting Staples v. United States, 511 U.S. 600, 606, 114 S. Ct. 1793, 1797 (1994)).
To determine whether the offense of which Ndikum was convicted was a public-
welfare offense, the supreme court considered two factors. First, the supreme court asked
“whether a gun possessor should have been on notice that possession of a gun was subject
to strict regulation.” Id. at 820. The supreme court determined that “the statute . . . does
not put gun owners on notice of stringent regulation,” which indicated that the statute “was
not a public welfare statute.” Id. at 822. Second, the supreme court stated that “the penalty
imposed for a violation ” of the statute setting forth the offense is “‘a significant

16
consideration in determining whether the statute should be construed as dispensing with
mens rea.’” Id. at 822 (quoting Staples, 511 U.S. at 616, 114 S. Ct. at 1802). Specifically,
the supreme court noted that public -welfare offenses “have historically been punished by
‘fines or short jail sentences, not imprisonment in the state penitentiary. ’” Id. at 822
(quoting Staples, 511 U.S. at 616, 114 S. Ct. at 1802). But the offense in Ndikum was a
gross misdemeanor on a first violation and could be enhanced to a felony in some
circumstances. Id. at 822. Accordingly, the supreme court determined that the applicable
sentences were “severe punishments incompatible with a public welfare offense. ” Id.
at 822.
It may not be necessary or appropriate to apply the two -factor test of Ndikum to
determine whether the offense of which Andersen was convic ted is a public -welfare
offense. It is obvious that the statute setting forth the crime of violating an HRO is neither
regulatory in nature nor concerned with public welfare. The statute is not concerned with
“industries, trades, properties or activities that affect public health, safety or welfare.” See
Morissette, 342 U.S. at 254, 72 S. Ct. at 245. Rather, it is concerned with “physical or
sexual assault” and “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), subjects
that are similar to the common -law crimes that historically have required proof of mens
rea, see Morissette, 342 U.S. at 25 5, 72 S. Ct. at 24 6. The statute is not concerned with
conduct that “merely create[s] the danger or probability of ” “direct or immediate injury.”
Id. at 256, 72 S. Ct. at 246. Rather, it is concerned with conduct that violates the rights of

17
the particular person who is protected by an HRO. Thus, we are inclined to conclude that,
for these reasons alone, the crime of violating an HRO is not a public-welfare offense.
In any event, w e reach the same conclusion by applying the two -factor test of
Ndikum. The first factor is whether a defendant is on notice that his or her conduct would
lead to strict criminal liability. See 815 N.W.2d at 820. The statute, by itself, requires an
HRO to include “conspicuous notice” of “the specific conduct that w ill constitute a
violation of the order” as well as the maximum penalties of misdemeanor, gross -
misdemeanor, or felony violation s. Minn. Stat. § 609.748, subd. 8(a)(1)-(2). If we were
to consider only the statute, we would conclude that a person restrict ed by an HRO must
be, and is presumed to be, on notice that a violation of an HRO is subject to strict criminal
liability. But the statute alone does not fully define the conduct that is a crime. In any
particular case, t he statute and an HRO work togeth er to define the criminal conduct.
Accordingly, we must look to both the statute and the HRO to determine whether Andersen
had sufficient notice of the conduct that would subject him to strict criminal liability.
The record reflects no doubt that Andersen had notice of the HRO and its contents.
The HRO stated that Andersen was prohibited from having “direct or indirect contact with”
M.L.B. and was “prohibited from being within 100 feet of [ M.L.B.’s] job site at ” a
specified address. The HRO also stated that Andersen was prohibited from “being within
100 feet of Petitioner’s home, the address of which is confidential .” Consistent with the
statute, the HRO conspicuously stated that “[a]ny conduct . . . in violation of the specific
provisions provided in Section 1 above constitutes a violation of ” the HRO, that he could
be arrested and taken to jail “if a police officer believes that [he] has violated ” the HRO,

18
and that a violation of the HRO “may be treated as” a crime and “may result in” a criminal
sentence. But, importantly, the HRO did not give Andersen notice of the location of
M.L.B.’s residence, even though he was prohibited from being with in 100 feet of it.
Indeed, the district court specifically found that “the evidence does not prove that
Defendant had notice or knowledge of the location of [M.L.B.’s] residence.” Thus,
Andersen did not have notice of all of the facts that might result in his criminal liability.2
The second factor is whether the penalties imposed for violations of HROs are
compatible with public-welfare offenses. See 815 N.W.2d at 822. A violation of an HRO
is at least a misdemeanor. Minn. Stat. § 609.748, subd. 6(a), (b). In certain circumstances,
a violation may be enhanced to a gross misdemeanor or a felony and punishable by prison

2Andersen’s brief states that section 609.748 “allows a petitioner to request that the
petitioner’s address remain confidential.” At oral argument, t he state agree d. At the
conclusion of oral argument, we asked counsel to submit letters with citations to
supplemental authorities relevant to the issue. See Minn. R. Civ. App. P. 128.05. The state
submitted a letter citing an opinion of the United States Supreme Court, an opinion of the
Minnesota Supreme Court, and a rule of public access to court records. Andersen
submitted a letter stating that he had no additional citations. We have reviewed the cited
authorities and believe that none of them is relevant . We note, however, that chapter 5B
of the Minnesota Statutes might, in certain circumstances, allow —and perhaps even
require—a district court t o maintain the confidentiality of the location of a protected
person’s residence. In short, a person may apply for participation in the state’s address -
confidentiality program. Minn. Stat. § 5B.03 (2018 & Supp. 2019 ). An applicant is
eligible for participation only if, among other things, the applicant “is a victim of domestic
violence, sexual assault, or harassment or stalking.” Minn. Stat. § 5B.03, subd. 1(2)(i).
The term “harassment or stalking” is defined by that statute to mean “acts criminalized
under section 609.749,” including “a threat of such acts committed against an individual.”
Minn. Stat. § 5B.02(h) (2018 & Supp. 2019). If a participant’s home address is protected
by statute, “no person or entity shall be compelled to disclose the partic ipant’s actual
address during the discovery phase of or during a proceeding before a court or other
tribunal,” unless the court finds that an exception applies. Minn. Stat. § 5B.11 (2018). In
this case, there is no indication that M.L.B. attempted to inv oke the provisions of
chapter 5B.

19
sentences and larger fines . Id., subd. 6 (c), (d). These are the types of penalties that the
supreme court has said are “incompatible” with a public -welfare offense. Ndikum,
815 N.W.2d at 822. Thus, both of the Ndikum factors lead to the conclusion that a criminal
violation of an HRO is not a public-welfare offense.
This conclusion is consistent with the supreme court ’s opinion in C.R.M., which
concerned the prosecution of a juvenile on a charge of possession of a dangerous weapon
on school property. 611 N.W.2d at 803-04. After determining that the offense is not a
public-welfare offense, the supreme court concluded that the state “was required to prove
that [C.R.M.] knew he possessed the knife on school property. ” Id. at 810. The supreme
court later explained that the state was required to prove C.R.M. ’s knowledge of both his
possession of the knife and his presence on school property because the juvenile was
charged with a type of possession that “only becomes criminal in certain locations,” as
opposed to a type of possession “that is criminal independent of the location. ” State v.
Benniefield, 678 N.W.2d 42 , 48 (Minn. 2004) (citing C.R.M., 611 N.W.2d at 809-10).
Similarly, in this case, Andersen was found guilty of a crime solely because of his presence
in a particular place. He was not in possession of any contraband and was not alleged to
have engaged in any conduct that, in itself, would be criminal. Thus, the statute is not
within the second exception to the general common -law rule that proof of mens rea is
required.

20
In sum, the state was required to prove that Andersen knew that his presence in a
particular location would subject him to criminal liability.3
D E C I S I O N
Because the state was required to prove that Andersen knew the location of M.L.B.’s
residence, the evidence is insufficient to sustain the conviction.
Reversed.

3At oral argument, the state argued that, if Andersen were to prevail in this appeal,
HROs would not be effective in ensuring the safety, security, and privacy of the persons
who are protected by them. The state argued that, to fulfill the purposes of the HRO statute,
it sometimes is necessary to conceal the location of the protected person’s residence from
the restrained person. We believe that there are ways to both maintain the confidentiality
of the location of the protected person’s residence and ensure that the respondent has notice
of the conduct that may lead to criminal liability. For example, a district court could follow
the approach specified in the Domestic Abuse Act by “exclud[ing] the [respondent] from
a reasonable area surrounding the dwelling or residence, which area shall be described
specifically in the order.” See Minn. Stat. § 518B.01, subd. 6(a)(2)-(3). This could be done
by, for example, using geographical boundaries to define an area that includes the
confidential location.