Molly Elizabeth Joyce, petitioner, 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This opinion is nonprecedential except as provided by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
A20-1162

Molly Elizabeth Joyce, petitioner,
Respondent,

vs.

Randy Clement,
Appellant.

Filed May 10, 2021
Affirmed
Cochran, Judge

Olmsted County District Court
File No. 55-CV-20-1828

Molly Elizabeth Joyce, Rochester, Minnesota (pro se respondent)

William L. French, French Law Office, Rochester, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Larkin, Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant challenges the district court’s issuance of a harassment restraining order
(HRO) against him. He argues that the record does not support the district court’s finding
that there are reasonable grounds to believe that he engaged in harassment of the petitioner.
He also contends that the district court abused its discretion by ordering him to refrain from
staring at the petitioner for more than one second. Because the record supports the district

2
court’s finding of harassment and the district court did not abuse its discretion by including
the anti-staring provision in the HRO, we affirm.
FACTS
Appellant Randy Clement and respondent Molly Joyce have lived across the street
from each other for many years. Joyce’s pare nts moved to the neig hborhood at least 20
years ago. In 2013, Joyce moved in with her parents to assist them. Clement has lived in
the neighborhood for approximately 25 years. A history of animus between the Joyce and
Clement families culminated in the events that gave rise to this dispute.
In March 2020, Joyce filed a petition request ing an HRO against Clement. In the
petition, Joyce alleged that Clement monito red her while she did yardwork, made an
uninvited visit into her yard, and swerved hi s vehicle towards her and her mother while
they were standing in the st reet. The day after Joyce file d the petition, a district court
referee granted an ex parte HRO. The ex parte HRO provided that Clement could ask the
court to vacate or change the order by requesting a hearing. On the day he was served with
the ex parte HRO, Clement requested a hearing.
At the hearing, the district court heard testimony from Joyce, her parents, Clement,
and Clement’s partner. Joyce and her mother both testified that they were standing in the
street in front of their house unloading gr oceries from a car when Clement drove a utility
terrain vehicle (UTV) towards them. Both testified that Clement swerved his UTV towards
them as he drove past them. Joyce testified that she needed to move herself and her mother
out of the way of the UTV to avoid being hit and that Clement came within a hand’s width
of hitting the car. Her mother testified that Clement would ha ve driven over her toes if

3
Joyce had not pulled her back. Joyce’s father testified that he also observed Joyce pull her
mother out of the way of Clement’s UTV. According to Joyce, the incident caused a great
deal of stress for both Joyce and her mother.
Joyce and her father testifie d that Clement would often engage in behaviors that
made Joyce feel intimidated while she worked in her yard. Joyce testified that, nine months
prior to the swerving incident, she had spoken to Clement regarding a matter concerning a
water well shared by their re spective properties. Clement has an easement granting him
access to the well. According to Joyce, Clement had entered the Joyce property and left
multiple bottles of bleach near the well. J oyce requested that he not do so without
permission. Clement’s partner testified that Clement was upset after discussing the matter
with Joyce. Joyce testified that Clement be haved more antagonistically towards her after
the discussion of the well matter.
Clement testified that he had never de liberately swerved his UTV towards Joyce
and her mother. Clement acknowledged driving the UTV on the street in question on the
day of the alleged incident but testified that he did not recall driving by Joyce or her mother.
Based on the testimony, the district court found reasonable grounds to believe that
Clement engaged in harassment of Joyce. Sp ecifically, the district court found that one
incident of “physical assault” by Clem ent occurred when Clem ent swerved his UTV
towards Joyce and her mother. The district court based its finding of assault on the
testimony of Joyce and her parents, which it found to be more credible than the testimony
of Clement. The district court also found that the well incident gave context to Clement’s
state of mind during the swerving incident.

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After the hearing, the district court issu ed an HRO effective until August 10, 2021.
The HRO prohibits Clement from harassing Joyce, from having any contact with Joyce,
and from entering the Joyce family property without permission. The HRO also provides
that Clement “can be anywhere in his own yard and boulevard, but [can]not engage in any
verbal exchange or visual staring to exceed one second” with Joyce. Clement appeals.
DECISION
A district court’s authority to issue an HRO is granted by Minn. Stat. § 609.748
(2020). A district court may issue an HRO “o rder[ing] the respondent to cease or avoid
harassment of another person” or “order[ing] the respondent to have no contact with
another person” if the court finds “that ther e are reasonable grounds to believe that the
respondent has engaged in harassment.” Minn. Stat. § 609.748, subd. 5. For purposes of
the HRO statute, “[h]arassment” includes “a single incident of physical . . . assault.” Id.,
subd. 1(a)(1).
We review a district court’s issuance of an HRO for an abuse of discretion.
Peterson v. Johnson , 755 N.W.2d 758, 761 (Minn. App. 2008). “A court abuses its
discretion if it makes findings of fact that are not supporte d by the record, misapplies the
law, or resolves the matter in a manner that is contrary to logic and the facts on record.”
Sinda v. Sinda, 949 N.W.2d 170, 175 (Minn. App. 2020) (quotation omitted). “A district
court’s findings of fact will not be set asid e unless clearly erroneous, and due regard is
given to the district court’s opportunity to judge the credibility of witnesses.”
Kush v. Mathison, 683 N.W.2d 841, 843-44 (Minn. App. 2004), review denied (Minn.

5
Sept. 29, 2004). The interpre tation of the HRO statute is a question of law, which we
review de novo. Peterson, 755 N.W.2d at 761.
Clement argues that the district court abus ed its discretion when it found that he
engaged in “harassment” within the meaning of the statute. Clement further argues that
the district court abused its discretion by ordering that he not stare at Joyce for more than
one second. We address each argument in turn.
I. The district court did not abuse its di scretion by finding that Clement engaged
in harassment.
The district court found reasonable grounds to believe that Clement engaged in
“harassment” of Joyce when he swerved his UTV near Joyce and her mother. The district
court concluded that this conduct constituted “physical assault” within the meaning of the
HRO statute. Clement argues that this co nduct does not constitut e “physical assault”
because there is no evid ence that he hit or otherwise ph ysically contacted Joyce or her
mother with his UTV. He contends that a finding of “harassment” based on physical assault
under the HRO statute requires evidence of actual physical contact. We disagree.
As noted above, the term “harassment” as used in the HRO statute includes a single
incident of “physical assault.” Minn . Stat. § 609.748, subd. 1(a)(1). In Peterson, we
examined the scope of the phrase “physical . . . assault” as used in the HRO statute.
755 N.W.2d at 762-63. We held that to prove physical assa ult within the meaning of the
statute, “a petitioner must prove the physical as pects of the statutory definition of assault
in chapter 609, i.e.[,] the intentional infliction of or attempt to inflict bodily harm upon
another.” Id. at 763 (emphasis added) (quota tion omitted). Thus, the phrase

6
“physical . . . assault” for the purpose of Minn. Stat. § 609.748, subd. 1(a)(1), includes not
just the intentional infliction of bodily harm but also an “atte mpt to inflict bodily harm.”
Id. (quotation omitted).
An attempt can occur without physical contact. “Atte mpt” is defined as “an act
which is a substantial step toward . . . th e commission of [a] crime” performed with the
intent to commit that crime. Minn. Stat. § 609.17, subd. 1 (2020). Consequently, to find
“physical assault” within the meaning of the HRO statute, the district court only needed to
find that Clement intended to inflict bodily harm upon Joyce and that he took a substantial
step towards inflicting bodily harm upon Joyce.
The record supports the di strict court’s determina tion that Clement took a
substantial step towards inflicting bodily ha rm when he swerved his UTV towards Joyce
and her mother. Joyce testified that, in Ma rch 2020, Clement almost struck her and her
mother with his UTV when they were unloading groceries from their car, which was parked
on the street near their house. She testif ied that Clement was dr iving his UTV in their
direction, then “swerved over” towards them and almost hit them. She further testified that
she had to “move [her] mother’s body out of the way” to av oid being hit. According to
Joyce, Clement came a “hand’s breadth” aw ay from the car. Joyc e’s mother likewise
testified that Clement “came very close to where I was taking something out of the far side
of the car. And [Joyce] pulled me back. And if she wouldn’t, I think he would have been
driving over my toes.” Joyce’s father also testified that he saw Joyce pull her mother out
of the way of the UTV to avoi d being hit. This testimony supports the district court’s

7
finding that Clement physically assaulted Joyce and her mother within the meaning of the
HRO statute.
In determining that a physical assault occurred, the district court considered
Clement’s denial of the swerving incident. But the district court found the testimony of
Joyce and her parents more credible. The di strict court explained that it did not find
Clement’s denial believable, particularly give n the history between the parties. Because
the district court is in a superior positio n to assess witness cr edibility, we defer to
the district court’s credibility determinations. In re Welfare of Children of S.R.K. ,
911 N.W.2d 821, 831 (Minn. 2018). Accordingl y, we conclude that the record fully
supports the district court’s determination that Clement physically assaulted Joyce and
thereby engaged in “harassment” within the meaning of the HRO statute.
In sum, the district court did not abus e its discretion when it found a reasonable
basis to believe that Clement engaged in harassment of Joyce.
II. The district court did not abuse its di scretion by ordering Clement to refrain
from staring at Joyce for longer than one second.
Based on its finding of harassment, the dist rict court issued an HRO that included
provisions prohibiting Clement from having any contact with Joyce. One provision
specifically provided that Clement “can be an ywhere in his own yard and boulevard, but
[can]not engage in any verbal exchange or visual staring to exceed one second.” Clement
argues that the district court abused its disc retion by ordering that he refrain from staring
at Joyce for more than one second. Clement challenges this aspect of the HRO as both

8
violating his right to due process and lacking support in the record. We are not persuaded
by either argument.
First, Clement fails to provide any legal support for his due process argument. He
cites to only one case, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973), the applicability
of which is unclear. In Roe, the Supreme Court addressed the right to privacy in the context
of examining the constitutionality of stat utes that criminalized abortion. Id. at 153,
93 S. Ct. at 727. Given that Clement does not argue that the district court’s order interferes
with his right to privacy, Roe is inapposite. Because Clement has not cited any relevant
legal authority in support of his due process argument, we decline to consider it. See In re
Reichmann Land & Cattle, LLP , 867 N.W.2d 502, 506 n.2 (M inn. 2015) (declining to
consider an “inadequately briefed” argument); Brodsky v. Brodsky, 733 N.W.2d 471, 479
(Minn. App. 2007) (noting that a party who inadequately brie fs an argument waives that
argument).
Clement next argues that the district c ourt lacked the necessary factual and legal
basis to order that he refrain from staring at Joyce for more than one second. While the
anti-staring provision at issue is unusual, the district court acted well within its statutory
authority when it included the provision in the HRO. Under Minn. Stat. § 609.748, when
a district court finds that there are reasonabl e grounds to believe that an individual has
engaged in harassment, the district court may issue an HRO that orders the individual “to
have no contact ” with the petitioner. Minn. Stat. § 609.748, subd. 5(a)(2) (emphasis
added). Because staring is a type of visual contact, the district court’s requirement that
Clement refrain from staring at Joyce fits squa rely within its statut ory authority. And,

9
Clement has provided no authority to support his argument that a district court abuses its
discretion by including such a provision in an HRO.
Additionally, it appears that the district court specifically imposed the one-second
requirement in response to Clement’s counsel’ s insistence at the e nd of the HRO hearing
that the district court clarify the terms of the HRO. In explaining its order, the district court
originally stated: “So if you see her on her property, obviously you can’t go onto their
property, but if you see her out and about, look the other way. Obviously you can be
anywhere on your property as well as the boulevard.” Clem ent’s counsel then asked the
following series of questions to the district court:
COUNSEL: Your Honor, another question. He can’t look at
her property, is that correct?
THE COURT: I did not say that. He can have no contact with
Ms. Joyce, nor can he harass her. So obviously—
COUNSEL: Well, you said in your finding that if she’s in her
yard, he has to look the other way.
THE COURT: I guess what I’m saying is that he not engage
in any verbal or even visual, I guess. He can continue to look,
but just don’t engage her in any way.
COUNSEL: I think we need to define this a little bit more
clearly. You’re saying he can look at the property—
THE COURT: I don’t want him staring at the property or
staring at Molly Joyce, how is that?
COUNSEL: How long? How many seconds?
THE COURT: I would say for more than one second. Enough
to identify she’s there, then he can look away.
COUNSEL: That’s part of your order?
THE COURT: That will be part of my order if you want it that
specific.

This exchanges makes clear that the c ourt’s one-second limitation was provided at
the behest of Clement’s counsel to clarify w ith specificity the term s of the order. The
limitation allows Clement time to identify Joyce and avoid continuing to look at her. On

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this record, we conclude that the district court did not abuse its discretion by including this
provision in the HRO.1
Affirmed.

1 Clement introduces two new arguments in his reply brief. He claims that (1) the district
court’s decision to grant the HRO was based on factors outside the record, and (2) its order
imposed an improper condition on the use of his easement over Molly Joyce’s property.
Generally, new arguments cannot be raised in a reply brief. Moorhead Econ. Dev.
Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010); Wood v. Diamonds Sports Bar & Grill,
Inc., 654 N.W.2d 704, 707 (Minn. App. 2002) (“If an argument is raised in a reply brief
but not raised in an appellant’s main brie f, and it exceeds the scope of the respondent’s
brief, it is not properly before [the court of appeals] . . . .”), review denied (Minn. Feb. 26,
2003). Because these arguments were not raised in Clement’s initial brief or Joyce’s brief,
we decline to reach them.