This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Valentina Nickolina Dolgalevsky,
Stearns County District Court
File No. KX981227
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Roger S. Van Heel, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.
The district court, in a bench trial, found Valentina Dolgalevsky guilty of one count of terroristic threats and three counts of second-degree assault. On appeal from the judgment of conviction, Dolgalevsky challenges the trial judge’s impartiality and the sufficiency of the evidence to support the convictions. We affirm because we conclude that the evidence supports each count of Dolgalevsky’s convictions and that her failure to raise the impartiality claim at trial precludes review.
The charges against Valentina Dolgalevsky grew out of a hostile relationship between neighboring households. Dolgalevsky lived with her mother in one of the households, and the Pederson family lived next door. John Pederson testified that on the morning of April 2, 1998, he and his brother were preparing to leave their house in Pederson’s car when they heard Dolgalevsky’s mother yelling obscenities at them. John Pederson began yelling back at her, and Dolgalevsky, apparently hearing the commotion, came out of the garage to join her mother.
According to Pederson and his brother, Dolgalevsky began threatening Pederson, speaking at times in a low, menacing tone of voice. Dolgalevsky told Pederson that she knew what his children looked like, that she knew where the children were, and that she would kill them and Pederson’s wife. She threatened to show Pederson who was boss, to kill him, to destroy his business, to kill his employees, and to ransack Pederson’s home after he left. Pederson testified that, during this encounter, Dolgalevsky held her left hand in her coat pocket in a way that suggested she was holding a gun.
The Pedersons reported the incident to the police, who obtained a warrant for Dolgalevsky’s arrest that same day. Attempting to execute the warrant, Officer Timothy Lewellyn first knocked repeatedly at the door of Dolgalevsky’s residence and then kicked in an exterior back door. Lewellyn entered onto a small landing and then broke down an interior door and fell into the kitchen doorway. Two officers accompanying Lewellyn followed him through the doors. All three officers testified that they moved closely through the set of doors.
After falling in the kitchen doorway, Lewellyn looked up and saw Dolgalevsky pointing a gun toward the officers. The other two officers testified that they came in right behind Lewellyn and saw the gun pointed at them as well. All three officers testified that they feared they would be shot. Two of the officers retreated out the back door, while Lewellyn fled to the basement and got out through a window.
Dolgalevsky testified and denied threatening any of the Pedersons’ physical safety or making threatening hand gestures. She admitted pointing a gun toward the officers, but said there were only two officers in the doorway. She testified that her purpose in aiming the gun at the two officers was not to harm them or to incite fear of harm, but to cause them to shoot her because she wanted to die.
In this appeal, Dolgalevsky argues that (1) she was denied a trial by an impartial judge because the trial court had heard earlier criminal and civil proceedings arising from these incidents, and (2) the evidence was insufficient to support her convictions of terroristic threats and second-degree assault.
Dolgalevsky argues for the first time on appeal that she was denied her right to a fair and impartial judge under Minnesota Rule of Criminal Procedure 26.03, subdivision 13(3). Under rule 26.03, a request to disqualify a judge must be made to the chief judge of the district. Id. The proper remedy for denial of a disqualificaton request is a writ of prohibition from this court. State v. Poole, 472 N.W.2d 195, 197 (Minn. App. 1991). Unless an issue involves plain error affecting substantial rights, failure to raise the issue in the district court generally constitutes waiver, which precludes appellate review. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Dolgalevsky argues the trial court judge committed plain error by failing to recuse for bias. The judge signed Dolgalevsky’s arrest warrant, conducted the omnibus hearing, held a civil hearing on restraining orders against Dolgalevsky, and presided at the criminal trial. Dolgalevsky argues the judge’s previous involvement with related proceedings would result in “a host of preconceptions.”
Judges should remove themselves under rule 26.03 if their impartiality might reasonably be questioned. State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993). This court has declined, however, to find that judges who preside over related proceedings are inherently biased. See Poole, 472 N.W.2d at 197 (no per se rule against issuing magistrate presiding at omnibus hearing on execution of warrant); State v. Wiley, 420 N.W.2d 234, 238 (Minn. App. 1988) (no per se rule against judge who presided over trial hearing post-conviction petitions), review denied (Minn. Apr. 26, 1988). Because there is no rule preventing the district court judge from presiding over the related criminal and civil proceedings in this case, we find no plain error. Cf. Griller, 583 N.W.2d at 740 (finding plain error in jury instruction when previous supreme court decision held nearly identical instruction was erroneous). In the absence of plain error, we decline to review the claim of impartiality Dolgalevsky did not raise in the district court.
Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a district court could reasonably conclude the defendant committed the crime charged. State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999). In evaluating the evidence, we must assume the fact-finder believed the evidence supporting the verdict and disbelieved evidence that did not. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The same standards for review apply to sufficiency-of-evidence determinations in criminal bench trials and jury trials. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998)
“Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another” is guilty of terroristic threats. Minn. Stat. § 609.713, subd. 1 (1996); State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). In the context of the terroristic-threats statute, purpose means aim, objective, or intention. State v. Schweppe, 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975). Terrorize means “to cause extreme fear by use of violence or threats.” Id.
Dolgalevsky argues that the evidence is insufficient to show that she acted with the “settled purpose to carry out the threat or to terrorize the other person” rather than with “transitory anger.” See State v. Taylor, 264 N.W.2d 157, 160 (Minn. 1978) (Sheran, C.J., dissenting) (suggesting that drafters of terroristic-threats statute did not intend that it extend to transitory anger or flippant remarks). Purpose, or intent, is a subjective state of mind usually established by reasonable inferences from surrounding circumstances. Schweppe, 306 Minn. at 401, 237 N.W.2d at 614. The victim’s reaction is not a necessary element of terroristic threats, but may provide circumstantial evidence of the defendant’s intent. State v. Marchand, 410 N.W.2d 912, 915 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987).
Applying these standards, we conclude that the evidence was sufficient to support the court’s finding that Dolgalevsky acted with the purpose to terrorize John Pederson. Dolgalevsky acknowledged a history of hostility with her neighbors. Pederson and his brother testified to the content of Dolgalevsky’s threats, her threatening demeanor, and her gestures. This circumstantial evidence supports the court’s finding that she intended to terrorize Pederson.
The Pedersons’ reaction to Dolgalevsky’s threats further supports a finding that Dolgalevsky acted with the requisite intent. Both Pederson and his brother testified that they believed Dolgalevsky meant to carry out her threats. Pederson removed his children from school to protect them from harm and removed a firearm from his home because he believed Dolgalevsky intended to ransack it. Dolgalevsky challenges Pederson’s testimony as uncorroborated and his actions as inconsistent with his testimony. But these challenges raise essentially credibility issues that are committed to the responsibility of the district court and may not be reweighed on appeal. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (credibility and weight to be given evidence are determined by trier of fact).
Minn. Stat. § 609.222, subd. 1 (1996), prohibits assault with a dangerous weapon. Assault is “an act done with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat. § 609.02, subd. 10 (1996). With intent means “that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.” Minn. Stat. § 609.02, subd. 9 (4) (1996).
The evidence is sufficient to support the three assault convictions against Dolgalevsky. All three officers testified that Dolgalevsky pointed a gun at them and that they feared they would be shot. Dolgalevsky testified that she intended to point the gun at the officers.
We reject Dolgalevsky’s argument that because she saw only two officers, only two assault convictions can be supported by the evidence. This argument and her logistical argument about the number of officers that could have fit on the landing at once conflicts with the officers’ testimony that they were close together as they moved through the doorways and that Dolgalevsky pointed the gun at all three of them. The district court apparently credited the officers’ testimony over Dolgalevsky’s. The court may also have considered Dolgalevsky’s admission that she intended to point the gun at whoever came through the kitchen door. Cf. Hough, 585 N.W.2d at 396-97 (affirming six assault convictions, one for each person home during a driveby shooting, holding that “the assailant’s knowledge of the presence of a particular victim is not essential to sustain a conviction under the statute”).
We also reject Dolgalevsky’s argument that she did not have the requisite intent to cause the officers fear because she only intended for them to follow standard police procedure and shoot her. Defendants rarely admit criminal intent. State v. Provost, 490 N.W.2d 93, 98 (Minn. 1992). Rather, the court must infer intent from the defendant’s actions in light of the surrounding circumstances. Id. What a person does and what foreseeably results from that person’s deeds bears on what that person may have had in mind. Id. (citing Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.5, at 317-18 (2d ed. 1986)). The court may reject the defendant’s exculpatory statements if “the evidence as a whole supports a finding that the actor intended the natural and probable consequences of [her] actions.” Hough, 585 N.W.2d at 396. The record in this case supports the court’s rejection of Dolgalevsky’s testimony on the existence of intent.