(dissenting).
The majority’s conclusion that Minn.Stat. § 609.749 requires proof that the defendant intended to cause the victim to feel oppressed, persecuted or intimidated, as opposed to proof that the defendant intended to engage in conduct that caused the victim’s reaction, regardless of whether the defendant had the specific intent to cause the reaction, is an unwarranted rewrite of a clear and unambiguous statute. Further, it is based upon a constitutionality argument that was not raised in the lower courts and should not now be heard by the court because it is raised for the first time here. Therefore, I respectfully dissent.
My first point of departure from the majority is its characterization of Minn.Stat. § 609.749 as a product of “peculiar drafting’.’ — apparently offered as a substitute for ambiguity as the requisite rationale for engaging in a search for legislative intent. Minn.Stat. § 645.16; see also Phelps v. Commonwealth Land Title Ins. Co., 537 N.W.2d 271, 274 (Minn.1995); Ed Herman & Sons v. Russell, 535 N.W.2d 803, 806 (Minn.1995). I do not believe Minn.Stat. § 609.749 is either peculiarly drafted nor is it ambiguous. As the majority points out, the statute has none of the words we are told by the legislature to look for, by application of Minn.Stat. § 609.02, subd. 9, to guide us as to whether proof of specific intent is required in applying Minn.Stat. § 609.749. The term “intentional” is used to define “conduct” in the definition of “harass” in subdivision 1, but clearly only to prevent innocent, accidental, negligent or other kinds of unintentional activity from triggering the statute. Thus, for example, if the defendant “repeatedly” telephones another but calls a wrong number, presumably no violation of Minn.Stat. § 609.749, subd. 2(4) would occur because the defendant did not intend to telephone the one called. But if the defendant intended to call the party reached, and the calls “(1) * * * would cause a reasonable person under the circumstances to feel oppressed, persecuted or intimidated; and (2) causes this reaction on the part of the victim” a violation of Minn.Stat. § 609.749 has occurred, without any further showing that the defendant had the specific intent to cause the victim’s reaction. That clearly is what the legislature has established as harassing and I see no reason for this court to inject an additional requirement of proof of specific intent to cause the victim’s oppressed, intimidated or persecuted reaction. If the legislature had intended to require proof of specific intent, as the majority concludes, it would simply have inserted the words “intentionally” or “with intent to” before the key word “causes” in subdivision 1 so that it would read:
*78Subd. 1 Definition. As used in this section, “harass” means to engage in intentional conduct in a manner that:
* * * *
(2) intentionally causes this reaction on the part of the victim.
It did not do so and it is not ours to supply the omitted words.1
Ironically, the majority’s reliance on “peculiar drafting” to justify a statutory rewrite to require proof of specific intent has created its own peculiar outcome, because now the state will not only be required to prove intent to oppress, persecute or intimidate; it must also prove that a hypothetical, reasonable person would so react, and that the victim did so react. But the peculiar result comes about because the court’s legislative rewrite grafts proof of specific intent onto a statute that already had a protective device incorporated in it to prevent its unwarranted application— that the conduct must be of a nature to cause a reasonable person to feel oppressed. So we are left with the anomaly of our courts exonerating those stalkers who fully intend to oppress, persecute or intimidate their victims, but proof fails as to the reasonableness of the victims’ reaction? Are we to protect the stalker who intends to inflict on a victim the odious consequences of the stalker’s conduct in preference to the interests of the victim who may unreasonably have felt those consequences? It seems this is precisely what the legislature was avoiding when it established a clear and simple statutory framework requiring only proof of intent of conduct, coupled with proof that a reasonable person would have so reacted and the victim in fact did so respond, to establish the crime of harassment and stalking. The reasonable person standard acts as a check to insure that an actor intentionally engaging in a mild degree of conduct otherwise covered by the statute will not be caught in its scope because of another person’s unreasonable reaction. The majority’s rewrite of the “peculiarly drafted” statute leads to its own peculiar, puzzling and irrational result.
In finding a requirement of specific intent, the majority places heavy emphasis on the listing in subdivision 2 of Minn.Stat. § 609.749 of a number of activities that are criminalized in other statutes where specific intent is required, concluding that the legislature must have intended to require specific intent because it references other specific criminal conduct that requires specific intent proof. I find this analysis misguided. First, reference to these criminalized activities requiring specific intent, but omitting specific intent as a requirement of proof in Minn. Stat. § 609.749, seems to cut in just the opposite direction the majority urges — that is, it once again underscores that the legislature knew exactly what it was doing when it required proof of specific intent with respect to particular conduct standing alone, without reference to a specific victim, but not where the statutory purpose is to protect a specific class of victims, i.e., targets of stalking or harassing conduct. In those cases, the legislature deemed it enough that the offensive conduct had occurred where there was proof of intent to act, coupled with proof that the conduct would have oppressed the reasonable person and it caused the victim to feel “oppressed, persecuted or intimidated.”
Second, the first listed offense in fact does require specific intent:
A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:
(1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act.
*79Minn.Stat. § 609.749, subd. 2 (emphasis added). Where the legislature employs the triggering language to require specific intent for one course of conduct but omits it for another, it seems particularly inappropriate for the court to now inject specific intent language.
Third, prohibited conduct described in paragraph (7) of Minn.Stat. § 609.749, subd. 2, clearly requires no specific intent either by its own terms or by reference to any other statute criminalizing the conduct:
A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor:
‡ ⅜ ⅜ ⅜ (7) engages in any other harassing conduct that interferes with another person or intrudes on the person’s privacy or liberty.
It is clear and unambiguous that the defendant’s conduct alone triggers Minn.Stat. § 609.749 based upon the consequence of that conduct, similar to subdivision 1, without regard to whether the defendant intended to interfere with or intrude upon the victim. The majority would rewrite this provision too, presumably by adding “with the intent to interfere or intrude.”
I also take issue with the majority’s reasoning that because the legislature needed only to list the activity to be criminalized to create a general intent statute, when it required proof of intentional conduct it must have intended in addition, to require the higher degree of proof of specific intent. I see no support for this conclusion whatsoever. Raising the specter that unless a requirement of proof of specific intent is read into the statute one could be charged with an accidental stalking, as does the majority, misses the point as to why subdivision 1 requires proof of intentional conduct in the first instance. The statutory focus clearly is on protecting the victim and it was obviously the legislature’s purpose to measure the nature of the defendant’s conduct, not by the defendant’s intended consequences, which might frequently be difficult to prove, but by how the hypothetical reasonable person would react to the defendant’s intended conduct and by the victim’s response. If the hypothetical reasonable person would feel oppressed, persecuted or intimidated by the defendant’s intended conduct, and in fact the victim does so react, the actor has violated Minn.Stat. § 609.749, if the conduct falls within any of the seven sections of subdivision 2. Application of the “reasonable person” test protects against criminalizing conduct that only an unreasonably sensitive or paranoid victim would find harassing, and therefore the risk of a truly innocent defendant falling within the ambit of Minn.Stat. § 609.749 is minimal. Further, stalking is a conduct of such personally intrusive nature that it seems not at all unreasonable for the legislature to deem that those who engage in such activity shall be subject to criminal prosecution because of their conduct alone, and without regard to the intended consequence. Proof that a reasonable person would feel oppressed, intimidated or persecuted by the defendant’s conduct and that the victim so reacted would seem to be sufficient proof that the defendant intended that reaction.
Finally, the majority’s conclusion that if it were to find only a requirement of general intent it might be unconstitutional is gratuitous and seems wholly unwarranted. No constitutional question was raised at the trial court level and on that basis the court of appeals specifically declined to provide constitutional review. We too should decline review because the constitutional issue was not raised at the trial court level and cannot be raised for the first time on appeal. State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980). While I have grave doubts about whether a statute that so explicitly defines the required proof of the offensive conduct, as does Minn.Stat. § 609.749, is unconstitutionally vague, I would consider the issue waived by the appellant for failure to timely raise it in the trial court.
I would therefore affirm the court of appeals.
COYNE, Justice..I join Justice Stringer’s dissent.
ANDERSON, Justice.I join Justice Stringer’s dissent.
. One need go no further than the statute preceding Minn.Stat. § 609.749 to find an example of numerous criminal statutes requiring proof of specific intent in Minnesota's criminal statutes. There the crime of "harassment” is defined as follows:
Subdivision 1. Definition. For the purposes of this section, the following terms have the meanings given them in this subdivision.
(a) "Harassment” includes:
(1) repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target * * *.
Minn.Stat. § 609.748 (1994) (emphasis added).