Breanna Marie Borth, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0571

Breanna Marie Borth,
Appellant,

vs.

Matthew Joseph Borth,
Respondent.

Filed January 10, 2022
Reversed and remanded
Cochran, Judge

Olmsted County District Court
File No. 55-CV-21-651

Danielle L. DiFiore, Anderson Law Firm, Rochester, Minnesota (for appellant)

Christopher W. Coon, Restovich Braun & Associates, Rochester, Minnesota (for
respondent)

Considered and decided by Segal, Chie f Judge; Cochran, Judge; and Klaphake,
Judge.

SYLLABUS
When a harassment restraining order is sought under Minn. Stat. § 609.748 (2020)
based on “harassment” involving “a single in cident of nonconsensu al dissemination of
private sexual images under section 617.261,” proof of intent “to have a substantial adverse
effect on the safety, security, or privacy of another” is not required.

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
OPINION
COCHRAN, Judge
This appeal arises from the district cour t’s dismissal of appellant’s petition for a
harassment restraining order (HRO). On appeal, appellant contends that the district court
erred when it interpreted the definition of “harassment” provided in the HRO statute, Minn.
Stat. § 609.748, and thereby abused its di scretion when it dismissed appellant’s HRO
petition. Because we agree with appellant that the district court misapplied the law when
it dismissed the HRO petition, we reverse and remand for reconsideration of the petition.
FACTS
In February 2021, appellant Breanna Marie Borth filed a petition for an HRO against
respondent Matthew Joseph Borth. Among other allegations, appellant’s HRO petition
alleged that respondent sent a private sexual image of appellant to a third party without
appellant’s permission. The district court i ssued an ex parte HRO. Respondent then
requested a hearing on the matter.
At the HRO hearing, the district court heard testimony from appellant as well as
from the third party who allegedly received the private sexual image from respondent. The
following summarizes the testimony relevant to this appeal.
In January 2021, appellant took a photo of herself in which she was partially nude
and sent the photo to respondent, who is appe llant’s ex-husband. Appellant intended for
respondent alone to receive the photo, send ing it through a cell-phone application called
Snapchat. According to appellant, res pondent took a screenshot of the photo and
3
threatened to send it to appellant’s current si gnificant other to “blackmail” appellant into
giving respondent “what he wanted with [their] kids.”
Appellant’s current significant other, M.P., testified to later receiving a text message
from respondent that included the partially nude photo of ap pellant. According to M.P.,
appellant did not intend for M.P. to receive the photo.
At the conclusion of the hearing, the dist rict court determined that the evidence did
not support issuing an HRO. With regard to the allegations relating to the photo, the district
court ruled that dissemination of a private sexual image could be a basis for an HRO but
concluded that the dissemination “has to be done with the intention of having a substantial
adverse effect on the safety, security, or privacy of another.” The district court then found
that respondent did not dissemina te the photo “for the purpose of adversely affecting the
privacy or security of [appellant]” and accordingly the dissemination of the photo did not
support issuance of an HRO.
Following the hearing, the district court issued a written order dismissing the
petition. The written order reiterated the district court’s conclusion that respondent did not
have the requisite intent, stating “[t]he dissemination of private sexual images was not done
with the intention of having a substantial adverse effect on th e safety, security or privacy
of another.” On that basis, the district court concluded that respondent’s dissemination of
the photo did not constitute “harassment” under the HRO statute. In the order, the district
court also found that the evidence did not support the other basis for an HRO alleged in the
petition.
This appeal follows.
4
ISSUES
I. Did the district court err in its interpre tation of the term “harassment” under Minn.
Stat. § 609.748, subd. 1(a)?
II. Does the district court’s misapplication of the law require reversal and remand to
the district court?
ANALYSIS
We review a district court’s decision wh ether to issue an HR O for an abuse of
discretion. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008). A district court
abuses its discretion “if it ma kes findings of fact that ar e not supported by the record,
misapplies the law, or resolves the matter in a manner that is contrary to logic and the facts
on record.” Madden v. Madden, 923 N.W.2d 688, 696 (Minn. App. 2019).
I. The district court erred in its interpreta tion of the term “harassment” under
the HRO statute.

Appellant raises a single issue on appeal. Appellant argues that the district court
misapplied the law when it interpreted the definition of “harassment” in the HRO statute,
Minn. Stat. § 609.748, subd. 1(a), and therefore abused its discretion when it dismissed her
HRO petition. More specifically, she contends that the district court erred when it
concluded that section 609.748, subdivision 1(a)(1), provid es that the nonconsensual
dissemination of a private sexua l image can support an HRO only if the dissemination of
the image was done with the “intent to have a substan tial adverse effect on the safety,
security, or privacy of another.” She argues that the intent language cited by the district
5
court does not apply to the nonconsensual dissemination of a private sexual image and
instead applies to other conduct listed in subdivision 1(a)(1). We agree.
The issue raised by appellant presents a question of statutory interpretation.
Appellate courts review questions of statutory interpretation de novo. State by Smart
Growth Minneapolis v. City of Minneapolis , 954 N.W.2d 584, 590 (Minn. 2021); see
Fiduciary Found., LLC ex rel. Rothfusz v. Brown, 834 N.W.2d 756, 760 (Minn. App. 2013)
(invoking de novo review when construing Minn. Stat. § 609.748 (2012)), rev. denied
(Minn. Sept. 17, 2013). The goal of statutory interpretation is to “ascertain and effectuate
the intention of the legislature.” Smart Growth, 954 N.W.2d at 590 (quoting Minn. Stat.
§ 645.16 (2020)). “The first step of statutor y interpretation is to determine whether the
statute’s language, on its face, is ambiguous.” Hagen v. Steven Scott Mgmt., Inc. ,
963 N.W.2d 164, 169 (Minn. 2021) (quotation omitted). A st atute is ambiguous only “if
its language is subject to more than one reasonable interpretation.” Id. (quotation omitted).
To make this determination, we “analyze the statute’s text, structure, and punctuation and
use the canons of interpretation.” Id. at 170 (quotation omitted). We must construe
statutory words and phrases “according to th e rules of grammar and common usage.”
Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010). “If a statute, construed according to
ordinary rules of grammar, is unambiguous, a court may engage in no further statutory
construction and must apply its plain meaning.” In re Custody of A.L.R., 830 N.W.2d 163,
169 (Minn. App. 2013).
We begin our statutory anal ysis by examining the language of the HRO statute.
Under section 609.748, a court may issue an HR O in response to a petition that has been
6
properly served if it finds “that there are reasonable grounds to believe that the respondent
has engaged in harassment.” Minn. Stat. § 609.748, subd. 5(b). The term “harassment” as
used in the HRO statute is defined, in relevant part, as:
a single incident of physical or sexual assault, a single incident
of harassment under section 609.749, subdivision 2, clause (8),
a single incident of nonconse nsual dissemination of private
sexual images under section 617.261, or 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, se curity, or privacy of another,
regardless of the relationship between the actor and the
intended target[.]

Id., subd. 1(a)(1) (emphasis added).
As quoted above, subdivision 1(a)(1) sets forth four alternative types of conduct that
can constitute harassment. The first three t ypes of conduct listed all involve “a single
incident”—a single incident of physical or se xual assault, a single incident of harassment
under section 609.749, subdivision 2, or a single incident of nonconsensual dissemination
of a private sexual image under section 617.261. Id. The fourth type of conduct involves
“repeated incidents of intrusive or unwanted acts, words, or gestures.” Id. Following the
fourth type of conduct, subdivision 1(a)(1) includes the qualifying phrase: “ that have a
substantial adverse effect or are intended to have a substantial adverse effect on the safety,
security, or privacy of another.” Id. (emphasis added). The dispute in this case centers on
that qualifying phrase and what language it modifies.
Appellant argues that the qualifying phrase is specific only to the final type of
conduct, “repeated incidents of intrusive or unwanted acts, words, or gestures.”
Respondent argues that the qualif ying phrase modifies all four types of conduct listed in
7
subdivision 1(a)(1), including “a single incident of nonconsensual dissemination of private
sexual images.” We agree with appellant.
Based on the plain language of subdivisi on 1(a)(1) and the application of rules of
grammar, we conclude that appellant’s interpretation is the only reasonable interpretation
of subdivision 1(a)(1). We first note that , of the four types of conduct listed in
subdivision 1(a)(1), the first three are described by sing ular noun phrases—“a single
incident of . . .”—while the final type of conduct is described by a plural noun phrase—
“repeated incidents of . . . .” Id. Those four noun phrases are separated by the word “or.”
Id. And the final, plural noun phrase is immediately followed by the qualifying phrase. Id.
“Or” is used as a disjunctive conjunction, m eaning that it distinguishes the elements in a
sentence. The Chicago Manual of Style § 5.205 (Univ. of Chicago Press ed., 17th ed.
2017).1 Because the word “or” is disjunctive, a singular verb must be used in order for the
qualifying phrase to modify the conduct involving “a single incident.” Id. Here, however,
the qualifying phrase contains plural verbs: “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) (emphasis added). Gi ven the use of the disjunctive
word “or,” and because the qualifying phrase c ontains plural verbs, rules of grammar

1 The Minnesota Supreme Court has recognized that, in some circumstances, “or” may be
conjunctive. See State v. Nelson, 842 N.W.2d 433, 440-41 (Minn. 2014) (noting that when
a proposition is phrased in the negative, use of “or” may allo w an interpretation that “or”
is conjunctive), superseded by statute on other grounds, 2014 Minn. Laws ch. 242, § 3, at
804 (codified as amended at Minn. Stat. § 609.375 (2020)); Binkley v. Allina Health Sys.,
877 N.W.2d 547, 552 n.5 (Minn. 2016) (citing this aspect of Nelson). Those circumstances,
however, are not present here.
8
dictate that the qualifying phrase cannot grammatically modify the singular “single
incident of” phrases listed in subdivision 1(a)(1) includi ng “a single incident of
nonconsensual dissemination of private sexual images under section 617.261.” Instead,
the qualifying phrase must modify only the plural phrase “rep eated incidents of intrusive
or unwanted acts, words, or gestures.”
This interpretation of subdivision 1(a)(1) is also supported by application of the
well-accepted rule of grammar known as th e “last-antecedent rule.” Under the
last-antecedent rule, “a concluding modifier in a series applies only to the nearest
reasonable element in the seri es, rather than to every element in the series.”
State v. Pakhnyuk, 926 N.W.2d 914, 921 (Minn. 2019) ( Pakhnyuk II). The rule “reflects
the basic intuition that when a modifier appears at the end of a list, it is easier to apply that
modifier only to the item directly before it.” State v. Stay , 935 N.W.2d 428, 432
(Minn. 2019) (quotation omitted). The last-a ntecedent rule applies where the concluding
modifier is a pronoun, relative prono un, or demonstrative adjective. State v. Pakhnyuk ,
906 N.W.2d 571, 577 (M inn. App. 2018) ( Pakhnyuk I ), aff’d, 926 N.W.2d 914
(Minn. 2019). “A relative pronoun is one that introduces a dependent (or relative) clause
and relates it to the independent clause.” Chicago Manual, supra, § 5.56.
The last-antecedent rule by its terms applies to subdivision 1(a)(1). The word “that”
in the qualifying phrase func tions as a relative pronoun, which introduces the relative
clause “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)
(emphasis added). The rule’s application to subdivision 1(a)(1) is further supported by the
9
absence of a comma between th e qualifying phrase and the last type of conduct listed in
subdivision 1(a)(1). Cf. 2A Norman J. Singer & Shambie Singer, Sutherland Statutes and
Statutory Construction § 47.33 (7th ed. 2021) (describ ing an exception to the last-
antecedent rule under which “[a] qualifying phrase separated from antecedents by a comma
is evidence that the qualifier is supposed to a pply to all the antecedents instead of only to
the immediately preceding one”); State v. Khalil , 956 N.W.2d 627, 635 (Minn. 2021)
(applying the exception to statutory language where the qualifier is set off by a comma).
Applying the last-antecedent rule, then, the qualifying phrase applies only to the last item
in the list: “repeated incidents of intrusive or unwanted acts, words, or gestures.”
To support his assertion that the qualif ying phrase applies to all four types of
conduct described in subdivision 1(a)(1) and not just to “repeated incidents of intrusive or
unwanted acts, words, or gest ures,” respondent urges us to apply a different rule of
grammar known as the “series-qualifier rule.” The series-qualifier rule provides that “when
several words are followed by a clause which is applicable as much to the first and other
words as to the last, the natural construction of the language demands that the clause be
read as applicable to all.” Pakhnyuk II , 926 N.W.2d at 921 (quotation omitted). The
series-qualifier rule, however, typically app lies only “when there is a straightforward,
parallel construction that involves all nouns or verbs in a series.” Pakhnyuk I, 906 N.W.2d
at 577 (quotation omitted). “Parallel construction means that words or phrases are arranged
so that every element of the parallel series is a functi onal match of the others and serves
the same grammatical function in the sentence.” Id. (quotation omitted).
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Here, the first three elem ents in the series do no t share enough grammatical
similarity with the fourth element to qualify as a straightforward, parallel construction. The
first three elements all describe “a single incident of” whereas the fourth element describes
“repeated incidents.” The three “single incide nt of” elements are clearly parallel to one
another—they each begin with the phrase “a single incident of” and then name a criminal
offense. See Minn. Stat. § 609.748, subd. 1(a)(1). The phrase “repeated incidents of
intrusive or unwanted acts, words, or gestures” does not follow that same formula. Instead,
the phrase references a general category of acts that do not necessarily constitute a criminal
offense. And the “single incident of” elements are singular, while the “repeated incidents”
element is plural. Because the paragraph includes the disjunctive “or,” those singular
elements are not a functional match of the plural element relative to the qualifying phrase.
Respondent also argues that the series-qualifier rule applies because the components
of subdivision 1(a)(1) are separated only by commas, rather than semicolons. But
Minnesota appellate courts have tended to conclude that the series-qualifier rule does not
apply where semicolons and line breaks ar e absent from a statutory provision. See Stay,
935 N.W.2d at 432 (“[B]ecause section 609.2 0(2) does not contain semicolons or line
breaks, the structure does no t support application of the series-qualifier rule.”); City of
Oronoco v. Fitzpatrick Real Estate, LLC , 883 N.W.2d 592, 595 (Minn. 2016) (“A
semicolon or a line break might signify that the third-party clause modifies all that goes
before, but there is no such signal.”). Mo reover, as with any grammatical rule, the
series-qualifier rule “can be defeated by ot her indicia of meaning, including competing
canons.” Pakhnyuk II , 926 N.W.2d at 922. Given the grammar and structure of
11
subdivision 1(a)(1), we conclude that the series-qualifier rule does not apply and the only
reasonable interpretation of the plain language of subdivision 1(a)(1) is that the qualifying
phrase modifies only the last type of conduc t listed—“repeated incidents of intrusive or
unwanted acts, words, or gestures.”
We are not persuaded otherwise by respond ent’s suggestion that the text of Minn.
Stat. § 617.261 (2020), which governs the criminal offense of nonconsensual dissemination
of private sexual images, supports his interpre tation of subdivision 1(a)(1). Specifically,
respondent emphasizes that section 617.261 defines the word “h arass” using similar
language to the qualifying phrase in section 609.748, subdivision 1(a)(1). See Minn.
Stat. § 617.261, subd. 7(c) (defining “harass” as “an act that would cause a substantial
adverse effect on the safety, security, or privacy of a reasonable person”). Respondent
appears to argue that, because the criminal statute contains similar language, the legislature
must have intended to require a finding of intent “to have a substantial adverse effect on
the safety, security, or privacy of another” when an HRO is sought on the basis of
nonconsensual dissemination of private se xual images. Respondent’s argument is
unavailing.
While section 617.261 does in clude its own definition of “harass,” that definition
relates solely to a factor used to enhance the criminal penalty and not to the offense itself.
See Minn. Stat. § 617.261, subd. 2(b)(5) (enhancing the crimin al penalty if “the actor
disseminates the image with intent to hara ss the person depicted in the image”). The
criminal offense of nonconsensual dissemination of private sexual images does not include
an intent-to-harass element. See Minn. Stat. § 617.261, subd. 1; State v. Casillas ,
12
952 N.W.2d 629, 641 n.7 (Minn. 2020) (“ The nonconsensual disse mination of private
sexual images statute does not require pe rsonal vengeance as a motive.”). Because
section 617.261 does not require a finding of intent to harass to satisfy the criminal offense
of nonconsensual dissemination of private sexual images, respondent’s reliance on the
definition of “harass” in that statute does not support his argument th at section 609.748,
subdivision 1(a)(1), requires a finding of intent to harass in order for an HRO to issue based
on the nonconsensual dissemination of a private sexual image.
To the contrary, a comparison of sections 617.261 and 609.748, subdivision 1(a)(1),
actually provides further support for appellant ’s interpretation of subdivision 1(a)(1).
Subdivision 1(a)(1) provides that harassment includes “a single incident of nonconsensual
dissemination of private sexual images under section 617.261 .” Minn. Stat. § 609.748,
subd. 1(a)(1) (emphasis added). This language indicates that an HRO may be issued where
the elements of the criminal offense, as provi ded in section 617.261, are met. Given that
section 617.261 does not include in tent to harass as an element of the criminal offense of
nonconsensual dissemination of private sexual images, it follows th at an HRO based on
nonconsensual dissemination of private sexual images does not require a finding of such
intent. Respondent’s alterna tive interpretation of section 60 9.748, subdivision 1(a)(1),
based on section 617.261 is not reasonable.
In sum, applying well-accept ed rules of grammar and considering the punctuation
and syntax of section 609.748, subdivision 1(a)(1), we conclude that the qualifying phrase
“inten[t] to have a substantial adverse effect on the safety, security, or privacy of another”
unambiguously modifies only the immediatel y preceding conduct involving “repeated
13
incidents of intrusive or unwanted acts, wo rds, or gestures.” The qualifying phrase does
not modify the phrase “a single incident of nonconsensual dissemination of private sexual
images under section 617.261.” Accordingly, when an HRO is sought based on “a single
incident of nonconsensual di ssemination of private sexual images,” the petitioner is not
required to demonstrate that the dissemination was done “with the intention of having a
substantial adverse effect on the safety, security, or privacy of another” as required by the
district court. The district court therefore misapplied the law when it dismissed appellant’s
HRO petition on the ground that respondent did not have the requisite intent.
II. The district court’s misapplication of the law requires reversal and remand of
the matter to the district court.

Respondent argues that even if the district court misa pplied the law, we should
affirm the district court’s dismissal of the petition because section 609.748 gives the district
court the discretion to grant or deny an HRO petition. Respondent emphasizes that
section 609.748, subdivision 5, pr ovides that the district court “ may issue a restraining
order that provides any or all of the following . . . .” (Emphasis added.) But misapplication
of the law constitutes an abuse of discretion. Madden, 923 N.W.2d at 696. And, in this
case, the district court’s abuse of discretion was not harmless. The district court denied the
HRO based on its erroneous interpretation of th e law. Therefore, we reverse and remand
for the district court to determine whethe r an HRO should be issued based on a proper
application of the law. See In re Welfare of M.F., 473 N.W.2d 367, 370 (Minn. App. 1991)
(reversing and remanding after the district court erroneously interpreted the law in a matter
14
involving the district court’s exercise of its discretion). Whether to reopen the record on
remand shall be discretionary with the district court.2
DECISION
We conclude that when an HRO is sought under Minn. Stat. § 609.748 based on “a
single incident of nonconsensual dissemi nation of private sexual images under
section 617.261,” proof of intent “to have a substantial adverse effect on the safety,
security, or privacy of another” is not required. Here, the district court abused its discretion
by dismissing appellant’s HRO petition based on an erroneous determination that appellant
was required to make such a showing. Accordingly, we reverse and remand the matter to
the district court to determine whether to grant appellant’s petition for an HRO in light of
a correct understanding of the law.
Reversed and remanded.

2 Appellant requested that we reverse and remand for a new hearing on her HRO petition.
We defer to the district court as to whether to reopen the record.