A17-1968

STATE OF MINNESOTA

IN SUPREME COURT

State of Minnesota,

Appellant,
vs.

Jennifer Ann Culver,

Respondent.

APPELLANT’S BRIEF AND ADDENDUM

KEITH M. ELLISON OFFICE OF THE MINNESOTA

Minnesota Attorney General APPELLATE PUBLIC DEFENDER
1800 Bremer Tower
445 Minnesota Street By: GINA SCHULZ
St. Paul, Minnesota 55101 Assistant State Public Defender
License No. 0396694
JOHN J. CHOI
Ramsey County Attorney 540 Fairview Avenue North, Suite 300
St. Paul, Minnesota 55104
By: THOMAS R. RAGATZ Telephone: (651) 201-6700
Assistant Ramsey County Attorney
License No. 0236822

345 Wabasha Street N., Suite 120

St. Paul, Minnesota 55102
Telephone: (651) 266-3156

ATTORNEYS FOR APPELLANT ATTORNEYS FOR RESPONDENT

 TABLE OF CONTENTS

LEGAL ISSUE ................................................................................................................... 1

PROCEDURAL HISTORY ............................................................................................. 1

STATEMENT OF THE CASE ........................................................................................ 2

STATEMENT OF FACTS ............................................................................................... 3

ARGUMENT ..................................................................................................................... 7

The Substantial-Deprivation-Of-Parenting-Time Statute Does Not

Require, As A Matter Of Law, Intent To Deprive For More Than
15 Straight Days; Reviewed In The Light Most Favorable To The
Conviction, The Evidence Here Is Sufficient Because The Intentional
Deprivation Was Considerable In Importance Or Extent ................................. 7

A. The Statute ................................................................................................... 7

B. The Issue ....................................................................................................... 7

C. The Standard Of Review ............................................................................ 8

D. The Analysis ................................................................................................. 9

1. The meaning of substantial ............................................................. 9

2. The Legislature’s intent ................................................................... 9

3. The substantialness of this deprivation ........................................ 11

a. The flaws in the court of appeals’ decision ....................... 11

b. The flaws in Ms. Culver’s arguments................................ 13

CONCLUSION ................................................................................................................ 16

i
 TABLE OF AUTHORITIES

MINNESOTA CASES

State v. Andersen, 784 N.W.2d 320 (Minn. 2010) ............................................................ 15

State v. Andow, 386 N.W.2d 230 (Minn. 1986) ................................................................ 10
State v. Hayes, 826 N.W.2d 799 (Minn. 2013) ................................................................... 8
State v. Henderson, 907 N.W.2d 623 (Minn. 2018) ............................................................ 9
State v. Robinson, 921 N.W.2d 755 (Minn. 2019) .....................................................Passim
State v. Struzyk, 869 N.W.2d 280 (Minn. 2015).................................................................. 9
State v. Wilson, 830 N.W.2d 849 (Minn. 2013) .................................................................. 7

STATUTORY AUTHORITIES

Minn. Stat. § 609.26, subd. 1(3) .......................................................................................... 7

Minn. Stat. § 609.26, subd. 5(a) ........................................................................................ 10
Minn. Stat. § 609.26, subd. 5(b) ........................................................................................ 10
Minn. Stat. § 609.3232, subd. 7(b) .................................................................................... 10
Minn. Stat. § 609.342, subd. 1(h)(iii) ................................................................................ 13
Minn. Stat. § 609.52, subd. 2(1) ........................................................................................ 13
Minn. Stat. § 645.08 (1)....................................................................................................... 9
Minn. Stat. § 518B, subd. 2(b)(7) ...................................................................................... 13

OTHER AUTHORITY

The American Heritage Dictionary 1213 (2d ed. 1985) .................................................... 9

https://www.merriam-webster.com/thesaurus/substantial................................................. 11

ii
 LEGAL ISSUE

It is undisputed that respondent Jennifer Culver intentionally deprived the victim of court-
ordered parenting time with his three-year-old daughter for 15 straight days. Did the court
of appeals err in holding that a conviction under the substantial-deprivation-of-parenting-
time statute requires more evidence than found here, thereby effectively construing the
statute as requiring proof of intent to deprive for more than 15 days?

The jury found Ms. Culver guilty; the court of appeals reversed.

Minn. Stat. § 609.26, subd. 1(3)

State v. Wilson, 830 N.W.2d 849 (Minn. 2013)
State v. Robinson, 921 N.W.2d 755 (Minn. 2019)
State v. Hayes, 826 N.W.2d 799 (Minn. 2013)
State v. Struzyk, 869 N.W.2d 280 (Minn. 2015)

PROCEDURAL HISTORY

July 25-August 8, 2016 Date range of offense

August 8, 2016
August 9, 2016
December 14, 2016
March 21, 2017
April 17-19, 2017
September 13, 2017
December 11, 2017
December 31, 2018
March 27, 2019
Respondent Jennifer Culver charged with two counts
of deprivation of parental rights (Minn. Stat. § 609.26,
subd. 1(1))
Ms. Culver arrested
Amended complaint filed, again charging two counts
of deprivation of parental rights
Second amended complaint filed, charging one count
of deprivation of parental rights (Minn. Stat. § 609.26,
subd. 1(3))
Jury trial, the Honorable Thomas A. Gilligan, Jr.
presiding; guilty verdict returned
Judge Gilligan imposed a $50 fine and granted a stay
of imposition for two years
Ms. Culver filed appeal from judgment of conviction
The court of appeals found the evidence insufficient
and reversed Ms. Culver’s conviction
This Court granted the State’s petition for review

1
 STATEMENT OF THE CASE

For intentionally depriving the victim of court-ordered parenting time with his three-

year-old daughter for 15 straight days – from July 25 until August 9, 2016 – respondent

Jennifer Culver was charged with depriving another of parental rights. Minn. Stat. §

609.26, subd. 1(3). On April 17, 2017, Ms. Culver’s jury was selected, the Honorable

Thomas A. Gilligan, Jr. presiding. On April 18, the victim and sole trial witness, D.E.,

testified. The defense did not present any evidence. The jurors were sent to begin

deliberations at 3:53 p.m., and excused for the day at 4:30 p.m. They reconvened at 9:00

a.m. on April 19, and returned a guilty verdict at approximately 10:00 a.m.

Sentencing was delayed because Ms. Culver did not respond until the beginning of

June to probation’s attempts to set up an interview, and then cancelled or rescheduled six

appointments. On August 9, Judge Gilligan ordered her to cooperate with probation. On

September 13, 2017, he ordered a stay of imposition with two years of probation, and

informed Ms. Culver that if she was successful on probation her felony would be reduced

to a misdemeanor. He denied the prosecutor’s request for additional jail time, ordering

Ms. Culver to serve one day with credit for one day already served.

The court of appeals held that the evidence was insufficient and reversed. State v.

Culver, 2018 WL 6837735 (Minn. App. Dec. 31, 2018) (copy included in Appellant’s

Addendum (AA.) at 1-3). This Court granted the State’s petition for review.

2
 STATEMENT OF FACTS

The relevant facts here are essentially uncontested. D.E. is an elementary school

teacher and gymnastics coach. T. 60. 1 He has children from a 13-year marriage that ended

in divorce in 2009. T. 61. He taught one of Ms. Culver’s daughters; he and Ms. Culver

started a casual relationship around the end of 2010, after D.E. was no longer teaching the

daughter. T. 61-62. He moved into Ms. Culver’s house in 2011. T. 62. They lived

together, with her children and his, for about a year. T. 62. The relationship eventually

soured, and D.E. and his children moved out. T. 64. For about a year thereafter, he and

Ms. Culver had contact via text messages or phone calls, but it “did not go well.” T. 64.

He initially gave Ms. Culver money, but then stopped, which made her angry. T. 64, 101.

In June 2013, Ms. Culver informed D.E. that in September 2012 she had given birth

to L., his daughter; D.E. paid for a paternity test that confirmed L. was his. T. 65; Ex. 3.

He was surprised, but interested in having a relationship with L. T. 66. He first saw her

about three months later, and eventually obtained court-ordered visitation rights. T. 66.

The initial visits were awkward and short, supervised by Ms. Culver at her house. T. 66-

67. Eventually, D.E. obtained a court order granting him unsupervised visitation. T. 67.

Visitation progressed from being supervised by Ms. Culver at her house, to being

supervised at his house or at a library, to being supervised by one of Ms. Culver’s friends.

T. 67-68. As long as the visits were supervised, D.E. generally got his visits when they

were scheduled. T. 68. Once they became unsupervised, this changed. T. 68.

1
“T.” refers to the consecutively paginated transcript covering April 17-19, August 9, and
September 13, 2017; it is tabs 10 through 13 in the bound volume of transcripts.
3
 Ms. Culver would frequently claim that L. was sick, or (foreshadowing alert) that

there was a family plan that could not be changed, so parenting time needed to be

rescheduled. T. 68. Between when D.E. first started unsupervised visits through the

beginning of 2016, he only got about half of his scheduled visits. T. 68-69. He only got

one or two overnights, which were supposed to happen every other weekend. T. 69. He

did not want to lose the time with L., and was open to scheduling makeup visits, but did

not get any makeup visits because Ms. Culver never scheduled them. T. 69.

On July 22, 2016, D.E. and Ms. Culver appeared before the Honorable Jeffery M.

Bryan for a family-court trial on the issue of visitation. A heavily redacted portion of the

transcript was introduced in this trial as Exhibit 1. T. 70. Judge Bryan ordered parenting

time for D.E., beginning July 25. Ex. 1 at 179-80. The visitation schedule was later

memorialized in an Order and Amended Order. Ex. 2 and 3. The orders specify that the

parties “Shall follow the parenting time schedule even in the event that the child is ill.” Ex.

2, 3. Details of the schedule are not pertinent to this appeal, because it is undisputed that

D.E. did not get his scheduled visits on July 25 or 26, or August 1, 2, 6-7 (overnight visit),

or 8. Ex. 3, 4. Judge Bryan ordered that all communication be conducted through an online

program called Our Family Wizard. Ex. 1 at 180.

At the end of the July 22nd family-court trial, Ms. Culver claimed that one of her

daughters was getting married and they were going to be out of town all of the following

week. Id. at 181. Judge Bryan responded by saying that he was not going to “get into these

types of day-to-day issues.” Id. He stated that these sorts of things have to be handled

through Our Family Wizard, and concluded by emphasizing that “The Court’s order is clear

4
however: parenting time is to begin July 25th. If the parties can come to some mutual

agreement otherwise, then that is up to them. But the parenting time is to begin July 25 if

there is no mutual agreement otherwise.” Id. at 182 (emphasis added).

Despite Judge Bryan’s order, on July 25 Ms. Culver informed D.E. – just hours

before he was going to pick up L. – that because of the alleged family wedding (about

which she never provided any proof), D.E. could not see L. for the next week and a half.

T. 71, 77; Ex. 4 at 8/AA. 11 (for this Court’s convenience, a copy of this exhibit is included

here at AA. 4-11). D.E. did not agree to this change in the visitation schedule, and showed

up at Ms. Culver’s house to pick up L., but did not get his scheduled parenting time. T.

71, 74-79; AA. 10. When D.E. sent Ms. Culver a message the next day, about his parenting

time scheduled for that day, she accused him of “harassment.” AA. 9. D.E. showed up at

Ms. Culver’s house on both July 26 and 29 for parenting time with L., but again did not

get any parenting time. T. 80; AA. 8-9. He was similarly unable to have his scheduled

parenting time with L. on August 1 or 2. T. 81-83; AA. 8. On one of the Mondays or

Tuesdays between July 25 and August 9, Ms. Culver was in her front yard with one of her

daughters when D.E. arrived to pick up L.; Ms. Culver said “please refer to my previous

messages. We have family plans that can’t be changed.” T. 82.

On August 5, at 2:09 p.m., Ms. Culver contacted D.E. and said that because of a

death in the family they need to leave town immediately and would be unavailable until

after the service on the following Tuesday (August 9). T. 83-84; AA. 8. D.E. responded:

“I do not agree to this unless you can provide the details of who died, when and where the

services are located and why you need to be out of town for the extended period of time.”

5
AA. 7. Ms. Culver responded that the person who died was her son-in-law’s father. Id.

With the help of police, D.E. found an obituary; it states that the deceased died nine days

earlier, on July 27, and that the funeral was scheduled for Monday, August 8, 2016, at 1:00

p.m. at Fort Snelling, with “no visitation.” T. 87; Ex. 7.

D.E. did not have his scheduled time with L. on August 6 or 8. T. 83-89; AA. 5-7.

Ms. Culver claimed, contrary to the published obituary, that there were services on both

August 8 and 9. AA. 6. In response to D.E.’s messages about his court-ordered parenting

time, Ms. Culver again accused him of harassment and stalking. AA. 4-6. D.E. was finally

able to have parenting time with L. on August 9, 2016, despite a message that Ms. Culver

sent him at 12:58 p.m. that day saying they had family plans through that day and needed

to travel out of town. AA. 4-5. At 11:13 p.m., Ms. Culver sent him a message asking why

he had not brought L. back. AA. 4. At trial, D.E. explained that he did not return L. on

the 9th because earlier that day Ms. Culver had been arrested “for this incident” and was

the subject of a hold. T. 92-93. D.E. also acknowledged that Ms. Culver made general

offers to reschedule parenting time, but explained that in the past he had not received any

makeup time, and the only concrete makeup time she proposed – rescheduling August 9 to

the 25th or 26th – was unacceptable because it was two-and-a-half-weeks later. T. 94; AA.

5. He felt frustrated and helpless. T. 95.

Ms. Culver did not testify at trial or present any evidence. T. 114, 116-19. In closing

argument, the defense attacked D.E.’s credibility, conceded that Ms. Culver should have

communicated better, and argued that she did not have the intent to substantially deprive

D.E. of his parental rights. T. 148-51. The jury quickly found her guilty. T. 157-59.

6
 ARGUMENT

The Substantial-Deprivation-Of-Parenting-Time Statute Does Not Require, As A

Matter Of Law, Intent to Deprive For More Than 15 Straight Days; Reviewed In The
Light Most Favorable To The Conviction, The Evidence Here Is Sufficient Because
The Intentional Deprivation Was Considerable In Importance or Extent.

A. The Statute

Under Minnesota Statutes section 609.26, “Depriving another of custodial or

parental rights,” subdivision 1(3), felony charges may be filed against one who

intentionally:

takes, obtains, retains, or fails to return a minor child from or to the parent in
violation of a court order, where the action manifests an intent substantially to
deprive that parent of rights to parenting time or custody[.]

B. The Issue

There is no dispute that Ms. Culver was convicted of a specific-intent crime. See,

e.g., State v. Wilson, 830 N.W.2d 849, 853 (Minn. 2013) (explaining that a specific-intent

crime is one that requires an intent to cause a particular result). The issue here is whether

the substantial-deprivation-of-parenting-time statute requires, as a matter of law, intent to

deprive for 16 or more days.

The court of appeals concluded that there was a reasonable hypothesis that Ms.

Culver did not intend to substantially deprive D.E. of parenting time, but it is undisputed

the she intentionally caused the particular result here: deprivation of parenting time for 15

straight days, in blatant violation of a clear court order. Whether this purposeful, more-

than-two-week deprivation was substantial must be reviewed under an objective standard;

Ms. Culver has never argued otherwise. Under a subjective standard, a defendant could

7
always defeat prosecution by testifying that she did not intend substantially to deprive

because she personally does not think that the amount of time at issue is substantial. No

caselaw or public policy supports applying a subjective standard. It is, for example, no

defense for a person accused of felony domestic assault against a victim with whom he

allegedly was “involved in a significant romantic or sexual relationship” to claim that he

personally did not consider the relationship significant; the question is whether the

evidence presented was sufficient for the jury to find the relationship significant. See State

v. Robinson, 921 N.W.2d 755, 761 (Minn. 2019).

Because Ms. Culver intentionally caused the particular result here – deprivation of

parenting time for 15 straight days – the only question is whether evidence presented was

sufficient for the jury to find the deprivation substantial. If it was substantial, then because

all of the deprivation was intentional, there was intent substantially to deprive.

C. The Standard Of Review

If Ms. Culver’s intent were at issue here, it would be reviewed under the

circumstantial-evidence standard of review. AA. 2. As set out above, however, this

deprivation was intentional; Ms. Culver never claimed it was somehow accidental or

inadvertent. Therefore, the question in this case, as the court of appeals recognized, is

whether Ms. Culver’s “conduct meets the statutory definition” of substantial deprivation;

this is “a question of statutory interpretation that is reviewed de novo.” AA. 1 (citing State

v. Hayes, 826 N.W.2d 799, 803 (Minn. 2013)).

8
 D. The Analysis

1. The meaning of substantial

Ms. Culver has never claimed, and the court of appeals did not find, that this statute

is ambiguous; it is not. Therefore, it is interpreted under its plain language. AA. 1 (citing

State v. Struzyk, 869 N.W.2d 280, 284-85 (Minn. 2015)). The statute does not provide a

definition of “substantial,” so it is appropriate to “look to dictionary definitions to discern

the plain meaning.” Robinson, 921 N.W.2d at 760 (citing Minn. Stat. § 645.08 (1) (2018)).

The court of appeals correctly observed that “the common definition of ‘substantial’ is

‘[c]onsiderable in importance, value, degree, amount, or extent.’” AA. 2 (citing The

American Heritage Dictionary 1213 (2d ed. 1985)).

As in Robinson, the dictionary definition here confirms the plain meaning of the

statute: the deprivation must be long enough to be considerable in importance or extent.

2. The Legislature’s intent

The goal of interpreting a statute “is to ascertain and effectuate the intent of the

Legislature.” State v. Henderson, 907 N.W.2d 623, 625 (Minn. 2018). Ms. Culver argued

below that 15 days is not “substantial” as a matter of law, but neither provided any evidence

that the Legislature intended to create a bright-line minimum number of days for a

deprivation of parental rights to be illegal, nor specified what that number of days should

be. Court of Appeals Appellant’s Brief (C.A. App. Br.) at 13-17. She may argue that this

matter should have been handled in family court, but the Legislature chose to criminalize

9
intentional substantial deprivation, and there is no basis for concluding that the Legislature

intended to define “substantial” in this context as “more than 15 days.” 2

Indeed, under the statute at issue here a deprivation of just over 48 hours may be

substantial; that is the deadline for voluntary return and mandatory dismissal. Minn. Stat.

§ 609.26, subd. 5(a). Importantly, the statute formerly required dismissal if a child was

voluntarily returned within 14 days (which is still less than the 15 days that preceded the

non-voluntary resumption of parental rights here), but the Legislature decreased the “grace

period” to the current two days. See State v. Andow, 386 N.W.2d 230, 232 (Minn. 1986)

(citing Minn. Stat. § 609.26, subd. 5(a) (1984)).

Similarly, the Legislature has provided a deadline of seven days – far less than 15 –

for certain actions that trigger dismissal of charges brought under this statute. Minn. Stat.

§ 609.26, subd. 5(b). And, without any minimum time of deprivation, “Any person who

willfully fails to return a minor child as required by an order for protection … commits an

act which manifests an intent substantially to deprive the parent or guardian of custodial

rights within the meaning of section 609.26, clause (3).” Minn. Stat. § 609.3232, subd.

7(b).

All of this strongly suggests that the Legislature intended that deprivation for over

two days – or at least over seven – is, or at least can be, substantial.

2
Family-court records are not in the file on this case, but the PSI sets out some of the
history of Ms. Culver’s unsupported allegations against D.E. and failure to comply with
court orders. Judge Bryan’s frustration with her is reflected in the August 2, 2016 Amended
Order, which adds the following: “Law enforcement is authorized to use the full force of
the law to enforce this Order, including the parenting time provisions.” Ex. 3 at 7.
10
 3. The substantialness of this deprivation

Under these facts, the jury reasonably concluded that the 15 straight days D.E. was

deprived of any time or contact with his three-year-old daughter, with whom he had only

recently begun establishing a relationship, was substantial. See Robinson, 921 N.W.2d at

761 (holding that whether a romantic or sexual relationship is “significant” requires a

“case-by-case analysis” with the evidence reviewed “in the light most favorable to the

conviction”). 3 Because the intentional deprivation here was substantial, the State did not

need to prove an intent to substantially deprive beyond the period of actual deprivation. 4

a. The flaws in the court of appeals’ decision

The court of appeals effectively created a bright-line rule that 15 days or less of

deprivation of parental rights is not “substantial.” AA. 1-2 (citing “common definition”

and “plain meaning” of “substantial” in determining whether the conduct here met “the

statutory definition” of the offense). It relied on two cases where the deprivation was for

more than 15 days, but neither analyzes how to define substantial, much less purports to

set a minimum number of days for a deprivation to be substantial. AA. 2-3. The court of

appeals also cited a case that involved only 12 days of deprivation. AA. 2.

Substantiality depends on context, as Ms. Culver conceded below. C.A. App. Br.

14. Certainly, 15 days would be a substantial amount of time to go without food; it might

3
“Significant” and “substantial” are synonyms.
https://www.merriam-webster.com/thesaurus/substantial (last visited Apr. 23, 2019).
4
An example of that kind of case would be one where a parent is caught boarding an
international flight with a child shortly after the child was supposed to be returned to the
other parent.
11
not be a substantial amount of time to go without bread. Similarly, 15 days without seeing

a 17-year-old child might not be substantial; the jury here reasonably concluded that 15

days without any interaction with three-year-old L., with whom D.E. had only recently

been able to begin establishing a relationship, was substantial. Under this Court’s recent

decision in Robinson, substantialness – which, like significance, essentially means

importance – must be determined on a case-by-case basis. 921 N.W.2d at 761. Neither

the court of appeals nor Ms. Culver have cited a case with facts similar to these where a

court overturned a jury’s decision and held that a deprivation was not substantial as a matter

of law, or where a court’s analysis suggests that a deprivation of this length is insufficient.

It is, again, undisputed that Ms. Culver blatantly violated Judge Bryan’s clear order

when she intentionally prevented D.E. from seeing L. for 15 straight days. There is, in

other words, no dispute that she intended to deprive D.E. of parenting time over those 15

days. This case does not turn on unique facts regarding the 15 days, because the facts cited

by the court of appeals are irrelevant. Whether 15 straight days of total deprivation is a

substantial period of time does not depend on whether: Ms. Culver concealed L., left the

state, was in communication with D.E., thought that she had legitimate reasons for ignoring

Judge Bryan’s order, intended to start providing parenting time immediately after the 15

days, or intended to make up the missed time. AA. 2. Regardless of all these things, Ms.

Culver intentionally deprived D.E. of his right to see (or even talk to) L. for what the jury

reasonably found was a substantial period of time – more than two weeks.

In analyzing whether a stolen amount of money was substantial, what the thief did

with the money would not be relevant, nor would indications of an intent to perhaps

12
someday pay some of the money back. Similarly, 15 days is a substantial amount of time

to deprive someone of food, regardless of whether you intend to give them food later. Here

too, all that matters is the length of the deprivation and the relationship between L. and

D.E. Unlike, for example, the crime of theft of movable property, this crime does not

require an intent to “permanently” deprive, so an alleged intent to make up the time later

is irrelevant. Minn. Stat. § 609.52, subd. 2(1).

b. The flaws in Ms. Culver’s arguments

Ms. Culver’s argument at the court of appeals that 15 days cannot be substantial as

a matter of law has been addressed above. 5 Her argument on intent – that the facts support

a rational hypothesis that she was trying to reschedule the visits – is, again, irrelevant given

the substantial deprivation D.E. and L. endured over the 15 days. It is also unreasonable

under all the evidence here – especially Ms. Culver’s history of lies regarding parenting

time and of never providing make-up time – considered in its totality, in the light most

favorable to the jury’s verdict. C.A. App. Br. 6, 21, 24. 6

5
Ms. Culver also made a vagueness argument in her reply brief, but it is well established
that a new argument cannot be made in a reply brief, and she never explained why
“substantially deprive” is unconstitutionally vague when, for example, “significant
romantic or sexual relationship” or “extended period of time” are not. Minn. Stat. §§ 518B,
subd., 2(b)(7), 609.342, subd. 1(h)(iii); see Robinson, 921 N.W.2d at 761 (rejecting
vagueness argument: where “the statutory language is not ambiguous … we need not
consider the canon of constitutional avoidance”).
6
Apart from the history of missed parenting time, the district court did not allow “testimony
regarding any alleged lies or misrepresentation that Ms. Culver told [D.E.],” like her claim
that she had been pregnant with triplets but lost all of them. T. 20-23, 34. The court
concluded that the evidence might be contextually relevant, but was concerned about the
danger of unfair prejudice. T. 34.
13
 Under any standard of review, the jury’s verdict here was the only reasonable one.

Ms. Culver provided late notice about the alleged wedding, lied about being out of town

for a week and a half, provided notice of a death in the family nine days after the death,

lied about the funeral, and knew she did not have the right to unilaterally change the court-

ordered parenting-time schedule but nevertheless failed to provide parenting time for 15

straight days, and then had the gall to accuse D.E. of harassment and stalking when he tried

to see his three-year-old daughter under the unambiguous court order. 7 It is true that Ms.

Culver suggested meeting to discuss makeup times, but she knew Judge Bryan had ordered

that all communication be online through Our Family Wizard. 8 She only made one

concrete rescheduling suggestion: for two-and-a-half weeks after August 9, which was at

the end of the more-than-two-week string of missed visits.

Further, it should be noted that Ms. Culver did not voluntarily end the deprivation;

it only ended when she was arrested on August 9, after she had again told D.E. that he

could not see L. that day, because of another supposed out-of-town trip that she did not

indicate would be of only a short duration. The court of appeals did not explain how the

State could have disproven the conjecture that regardless of this arrest, Ms. Culver would

have started providing parenting time soon, and ceased her pattern of lying about L.’s

7
It was not the State’s burden to disprove that the wedding occurred, or that being a flower
girl in a claimed out-of-town wedding (not an out-of-state one) made L. completely and
unavoidably unavailable for a week and a half, despite Judge Bryan’s order. And the
evidence shows Ms. Culver and L. were not out of town for a week and a half. T. 82.
8
Notably, Ms. Culver never asked D.E. to send her possible make-up dates. His
unwillingness to meet with her, in violation of Judge Bryan’s order and with no ability to
prove what she said at such a meeting, was well founded considering her past lies and
hostility.
14
availability. Ms. Culver did not testify at trial and claim that she really intended to start

honoring Judge Bryan’s order soon after the 15 days (and not to just continue stalling), so

whether she would have done so is not only irrelevant but also mere speculation that goes

against her history of lies and not providing parenting time.

If this Court does review the reasonableness of the hypothesis the defense has relied

on – that Ms. Culver intended to voluntarily end the missed parenting time after the 15

days and to make up the missed visits – it must defer to the jury’s “rejection of evidence in

the record that conflicted with the circumstances proved by the State.” Robinson, 921

N.W.2d at 762 (citing State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)). The jury:

heard D.E.’s live testimony; saw the State’s exhibits; observed Ms. Culver’s demeanor;

and rejected the defense’s argument that she sincerely intended to start obeying the

parenting-time order, and make up the missed parenting time, and therefore did not intend

to substantially deprive D.E. This Court should not second guess the 12 jurors’

determination. And again, how much longer the deprivation would have lasted and

whether Ms. Culver would have (for the first time ever) made up the missed visits is

ultimately irrelevant given the substantial 15-day deprivation that she intentionally caused.

Finally, the jury’s verdict is supported not only by the length of the deprivation, and

L.’s young age and fledgling relationship with D.E., but also by the “consequences” of the

deprivation, which demonstrate its importance. Robinson, 921 N.W.2d at 762. The

deprivation left D.E. feeling “frustrated” and “helpless” enough to obtain an Amended

Order on parenting time from Judge Bryan (see footnote 2, supra), and to call the police,

who arrested Ms. Culver. T. 92-93, 95.

15
 CONCLUSION

In looking at the evidence as a whole, in the light most favorable to the jury’s

verdict, there is no basis for concluding that the jury erred in rejecting the defense claim

that Ms. Culver sincerely intended to promptly schedule more-than-two-weeks’ worth of

makeup visits, despite her history of never doing so and her failure to suggest more than

one make-up date, which was for 16 or 17 days later.

More importantly, regardless of Ms. Culver’s alleged intent regarding future visits,

there is no basis for concluding that the undisputed 15 straight days of intentional

deprivation here cannot be substantial as a matter of law. The bottom-line question for

Ms. Culver is this: how can 15 days be per se insufficient when the Legislature reduced the

“grace period” from 14 days to just two?

In light of all of the facts – especially L.’s young age, the number of visits missed

(including an overnight visit), and the fact that D.E. did not obtain visitation rights with L.

until she was about a year old because of Ms. Culver’s failure to inform D.E. about L.’s

existence – the jury did not err in finding this deprivation substantial. Robinson, 921

N.W.2d at 761. Appellant respectfully requests that this Court reverse the court of appeals.

Respectfully submitted,

JOHN CHOI
RAMSEY COUNTY ATTORNEY

Dated: April 26, 2019

Thomas R. Ragatz
Assistant Ramsey County Attorney

16