State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1008

State of Minnesota,
Respondent,

vs.

Lance Daniel Dewuske,
Appellant.

Filed June 21, 2021
Affirmed in part, reversed in part, and remanded
Ross, Judge

Chisago County District Court
File No. 13-CR-19-595

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

Janet Reiter, Chisago County Attorney, David M. Classen, Assistant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
ROSS, Judge
Lance Dewuske appeals from his judgments of conviction of and sentence for
harassment and stalking, contending that his convictions were based on improperly
admitted evidence about a Facebook friend request directed at the victim, that they rest on
insufficient evidence, that they punish speech protected by the First Amendment, and that
they violate his right not to be convicted and sentenced for lesser-included offenses.
Dewuske raises additional but undeveloped arguments in a separate, supplemental brief.
For the following reasons, we are persuaded only by his challenge based on lesser-included
offenses, and we affirm in part, reverse in part, and remand.
FACTS
Lance Dewuske met K.H. in January 2019 when Dewuske began patronizing a
Taylors F alls bar where K.H. worked. Dewuske became infatuated with K.H., but the
attraction was not mutual. He left K.H. signs of his affection at the bar—a large tip, gifts,
and a love letter. K.H. never reciprocated. Things came to a head the day Dewuske left a
letter addressed to K.H. and her daughter, professing his love and announcing that he was
“[t]hinking about [her] in his bed.” Dewuske followed up by leaving voice messages on
K.H.’s phone. K.H.’s boyfriend finally answered and told him to stop. But he did not stop.
K.H. reported Dewuske’s conduct to a Chisago County sheriff’s deputy. The deputy
told Dewuske not to contact K.H., and Dewuske said that he would stop. But he did not.
About two weeks later K.H. reported to the deputy that Dewuske continued to repeatedly
telephone her number.
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The district court issued a harassment restraining order (HRO) on March 25, 2019,
and an amended order on May 1, prohibiting Dewuske from contacting K.H. or being
within one-half mile of her home or within one block of her employment at the bar.
Dewuske continued to contact K.H. through various means. She received a
Facebook friend request on May 19, 2019, from an account under the name, “Lance
Dewuske.” About a month and a half later, she saw Dewuske wave at her from a balcony
across the street from her workplace. K.H. reported the encounter to a deputy, the deputy
asked Dewuske if he had waved at K.H., and Dewuske told the deputy that he could
“wave[] . . . at whoever he pleases.”
The state charged Dewuske with one count of felony pattern of stalking, one count
of gross misdemeanor stalking, and three counts of misdemeanor HRO violation. Minn.
Stat. §§ 609.748, subd. 6(b), 609.749, subds. 2(2), 5(a) (2018). A jury found him guilty as
charged. The district court entered judgments of conviction and sentenced Dewuske for all
five offenses.
Dewuske appeals.
DECISION
Dewuske contends his convictions must be reversed because they were based on
insufficient evidence and erroneously admitted evidence, violate the First Amendment in
the manner the district court instructed the jury, and violate a statute prohibiting conviction
and sentence for lesser-included offenses. Only his last argument prevails.
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I
Dewuske argues that the district court abused its discretion by admitting two
screenshots of the Facebook friend request as evidence that he violated the HRO. We
review a district court’s evidentiary rulings for an abuse of discretion. State v. Hallmark,
927 N.W.2d 281, 291 (Minn. 2019). If the district court erroneousl y admitted evidence
after an objection, we will reverse only if the error harmed the defense. State v. Matthews,
800 N.W.2d 629, 633 (Minn. 2011). That is, we will correct an error that does not involve
a constitutional right only if the defendant establishes that there is a “reasonable possibility
that the wrongfully admitted evidence significantly affected the verdict.” Id. (quotation
omitted). We do not believe the district court improperly admitted the screenshots.
Dewuske specifically argues that the state failed to prove that he , rather than
someone else, sent the friend request. But authorship was not assumed, it was debated and
the subject of a factual dispute at trial. The prosecutor did not present the evidence to show,
or argue to the jury that the evidence itself proved, that Dewuske sent the request. The
screenshots instead corroborated K.H.’s testimony that she in fact received a friend request
from an account bearing the name “Lance Dewuske.” The question of whether Dewuske
himself sent the request was a factual issue for the jury to determine in the context of
deciding whether Dewuske committed a misdemeanor HRO violation. Dewuske’s counsel
argued the issue in precisely that context in his closing remarks to the jury, urging, “This
information about the Facebook messages, she specifically even testified that she didn’t
know if it was him, she didn’t check the email, didn’t have a photograph, we don’t have
any information that this Facebook request . . . even occurred from Mr. Dewuske.” The
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fact that the question of authorship was an issue for the jury to decide might have been
more clearly presented by a jury instruction expressly limiting the jury to use it in that
fashion rather than rely on it as proof that Dewuske authored the request. But Dewuske
asked for no limiting instruction and does not argue on appeal that failing to so instruct the
jury was error. We see no abuse of discretion.
II
Dewuske next argues that the state presented insufficient evidence for the jury to
find that he had the requisite mens rea for felony pattern of stalking. We carefully review
the record to determine if the evidence, considered in the light favorable to the guilty
verdict and giving due regard to the state’s reasonable-doubt burden of proof, allowed the
jury reasonably to find the defendant guilty. State v. Gruber, 864 N.W.2d 628, 636 (Minn.
App. 2015). Someone who “engages in a pattern of stalking conduct with respect to a single
victim . . . which the actor knows or has reason to know would cause the victim under the
circumstances to feel terrorized or to fear bodily harm and which does cause this reaction
on the part of the victim is guilty of a felony. ” Minn. Stat. § 609.749, subd. 5(a) (2018).
The term “feel terrorized” means to “feel extreme fear.” State v. Franks, 765 N.W.2d 68,
74 (Minn. 2009).
Dewuske acknowledges that K.H.’s testimony that she was very afraid and feared
for her physical safety satisfies the requirement that Dewuske’s conduct actually caused
her to feel terrorized or fear bodily harm. He also recognizes that a defendant’s mental state
is ordinarily inferred from circumstantial evidence rather than proved by direct evidence.
See State v. Mattson, 359 N.W.2d 616, 617 (Minn. 1984). But he contends that the
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circumstantial evidence is insufficient to prove that he knew or had reason to know that his
conduct would result in K.H.’s fear. The record defeats his argument.
The evidence supports the jury’s inference, beyond a reasonable doubt, that
Dewuske knew or should have known that his contact would cause K.H. to feel terrorized.
Evaluating whether circumstantial evidence is sufficient, we first identify the
circumstances proved, and then we determine whether the reasonable inferences drawn
from those circumstances are consistent only with guilt, without deferring to the jury’s
inferences. State v. Silvernail, 831 N.W.2d 594, 598–99 (Minn. 2013). The circumstances
proved point only to Dewuske’s guilty mind. Dewuske knew that K.H. had responded to
his repeated, unreciprocated romantic or sexual overtures by reporting his conduct to law
enforcement. A reasonable person would know that fear precipitated the report. A deputy
then told Dewuske not to contact K.H. again. A reasonable person would know that
continued contact after a stern police warning would result in fear that is even more
intensified than the fear that led to the initial report. Dewuske continued to contact K.H.
repeatedly anyway. Dewuske knew that K.H. applied for and obtained an HRO based
expressly on her having been “frightened” by Dewuske’s repeated contact, which she saw
as “threatening behavior.” He knew that this included, among other things, the fact that he
“sent [her] letters, mentioned [her] daughter in the letters, and indicated that he thought
about [her] in bed.” A reasonable person would know that continued contact with K.H.
after being directed by police and then ordered by the court not to contact her would put
her in even greater fear than she was already experiencing from the contact that occurred
before those prohibitions. And Dewuske’s mens rea is not derived purely from
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circumstantial evidence; during one of his (more than 50) telephone calls to the Chisago
County dispatcher cen ter, Dewuske revealed expressly that he knew K.H. was in fear,
saying to the dispatcher that K.H. is “only scared because [law enforcement] put that in her
mind.”
We apply these circumstances proved to Dewuske’s conviction of felony pattern of
stalking based on the three HRO violations. See Minn. Stat. § 609.749, subd. 5(b)(7)
(2018). By the first time Dewuske engaged in any of the three HRO-violating contacts that
supported that conviction, he knew all of the facts just summarized. Considering everything
he knew alongside his continued violating behavior, any reasonable jury would necessarily
conclude that Dewuske knew or should have known that his continued contact would cause
K.H. to feel terrorized or fear bodily harm. T he circumstances proved point only to guilt
and therefore support the verdict.
III
The state correctly agrees with Dewuske’s contention that the gross misdemeanor
stalking and three misdemeanor HRO violations are lesser-included offenses of the felony
pattern-of-stalking offense. The district court may convict a defendant “of either the crime
charged or an included offense, but not both. ” Minn. Stat. § 609.04, subd. 1 (2018). The
proof of the felony necessarily proves the underlying offenses. Id., subd. 1(4). We therefore
affirm only the felony conviction but reverse and remand for the district court to amend
Dewuske’s conviction and sentence accordingly.
Because we reverse the gross misdemeanor conviction on the included-offense
ground, we do not consider Dewuske’ s argument challenging the district court decision
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denying his request for a specific-intent jury instruction for that offense. Dewuske argues
that the district court should have given a specific-intent jury instruction because the
statute’s allegedly negligence mens rea element imposes a facially overbroad restriction of
his First Amendment rights. We decline to reach the argument, without prejudice to his
opportunity to raise it again, if it becomes relevant. Dewuske also raises contentions in a
supplemental brief—questioning his attorney’s conduct, the prosecutor’s conduct, and the
truthfulness of trial testimony—but these lack legal arguments or any identified factual
support in the record. We do not address them.
Affirmed in part, reversed in part, and remanded.