This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


James Frederick Kehren,

Filed January 4, 2000
Short, Judge

Scott County District Court
File No. 9814185

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Thomas J. Harbinson, Scott County Attorney, Michael J. Groh, Angela M. Helseth, Assistant Scott County Attorneys, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414; and

Rick E. Mattox, Assistant First Judicial District Public Defender, 16670 Franklin Trail Southeast, Prior Lake, MN 55372 (for appellant)

Considered and decided by Anderson, Presiding Judge, Short, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

A jury convicted James Kehren of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1998). On appeal, Kehren argues: (1) the evidence is insufficient to support his conviction; and (2) the trial court abused its discretion in its jury instructions. We affirm.



Evidence sufficiently supports a conviction if, given the facts in the record and any legitimate inference taken from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We do not retry the facts, but instead view the evidence in the light most favorable to the jury's verdict. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). We assume the jury believed the state's witnesses and disbelieved any contrary evidence. Id.

Kehren argues the evidence supporting his conviction was insufficient for the jury to find he made terroristic threats, rather than merely expressing transitory anger. See Minn. Stat. § 609.713, subd. 1 (providing terroristic threats occur when person threatens, directly or indirectly, to commit crime of violence with purpose to terrorize another or in reckless disregard of the risk of causing such terror); State v. Taylor, 264 N.W.2d 157, 160 (Minn. 1978) (Sheran, C.J., dissenting) (noting terroristic threats statute intended to punish verbal threats expressing settled purpose to carry out threat or terrorize other person rather than expressing transitory anger). The record shows: (1) Kehren told the victim he would come down with a gun to take care of the problem himself; (2) the victim was frightened that Kehren would harm her, and appeared upset and visibly shaken; (3) Kehren called a state employee later the same day and told her he would come down and "go postal;" and (4) Kehren understood his statements would frighten people. Given these facts, the evidence sufficiently supports the jury's verdict. See State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975) (recognizing terroristic threats' effect on victim is circumstantial evidence relevant to defendant's intent); State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (concluding jury had sufficient evidence to reject transitory anger theory where inmate threatened to kill correctional workers upon his release), review denied (Minn. Feb. 21, 1990); State v. Marchand, 410 N.W.2d 912, 914-15 (Minn. App. 1987) (finding defendant acted with intent, rather than out of transitory anger, when he yelled at wife of tow-truck owner that he would run her off the road if he ever saw her), review denied (Minn. Oct. 21, 1987).


A trial court is given broad discretion in selecting the language for jury instructions and in refusing to give a requested jury instruction. State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995). In addition, a trial court exercises discretion in responding to a jury's question. State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986). We review jury instructions as a whole, and will not reverse absent an abuse of discretion. Auchampach, 540 N.W.2d at 816.

Kehren argues the trial court abused its discretion in rejecting Kehren's proposed instruction on transitory anger. The trial court, however, specifically instructed the jury on the meaning of "intent to terrorize" and reckless disregard, and thus, under the specific facts of this case, an additional instruction on transitory anger would not have been necessary. Moreover, the trial court properly permitted arguments on transitory anger during the trial as it related to the intent element. Under these circumstances, the trial court did not abuse its discretion in refusing to instruct the jury on transitory anger. See State v. Lavastida, 366 N.W.2d 677, 680 (Minn. App. 1985) (affirming denial of virtually identical instruction on transitory anger where submitted instructions adequately covered elements of terroristic threats).

Kehren also argues the trial court abused its discretion in refusing to submit Kehren's instruction on the definition of "recklessness." But the trial court's instructions, modeled after CRIMJIG 13.41, .42, sufficiently distinguished intent and reckless disregard. 10 Minnesota Practice, CRIMJIG 13.41, .42 (Supp. 1998). In addition, the record shows the trial court was concerned Kehren's proposed instruction would confuse the jury because his instruction included the word "intentional." Under these circumstances, we cannot say the trial court abused its discretion in refusing Kehren's proposed instruction on the definition of recklessness.

Finally, Kehren challenges the manner in which the trial court responded to a question posed by the jury during its deliberation, asking if it could convict without intent. The trial court directed the jury to rely on its instructions defining the elements of terroristic threats. This response is proper under the rules and caselaw, and we therefore conclude the trial court did not abuse its discretion by referring the jury to an earlier instruction. See Minn. R. Crim. P. 26.03, subd. 19(3) (permitting trial court to give appropriate additional instructions or to direct jury to reread previous instructions); Murphy, 380 N.W.2d at 772 (recognizing trial court may amplify previous instructions, reread them, or not respond); State v. Crims, 540 N.W.2d 860, 864-65 (Minn. App. 1995) (concluding trial court may properly refer jury to court's initial instructions), review denied (Minn. Jan. 23, 1996).