This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Matter of the Welfare of:
Pine County District Court
File No. J19950211
John M. Stuart, Minnesota State Public Defender, Charlann E. Winking, Assistant State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
John Carlson, Pine County Attorney, Pine County Courthouse, 315 Sixth Street, Pine City, MN 55063 (for respondent).
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
“In a delinquency adjudication, as in a criminal case, the due process clause of the Fourteenth Amendment to the United States Constitution requires the state to prove beyond a reasonable doubt every fact necessary to constitute the charged crime.” In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)). On appeal from a determination that the elements of a crime have been proved, this court is limited to ascertaining whether, given the facts and legitimate inferences, a fact-finder could reasonably make that determination. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). This court must view the record in the light most favorable to the determination and must assume that the fact-finder believed the testimony supporting the determination and disbelieved any contrary evidence. State v. Braylock, 501 N.W.2d 625, 628 (Minn. 1993); In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).
Several of R.P.’s classmates accused him of making terroristic threats. See Minn. Stat. § 609.713, subd. 1 (1998) (defining terroristic threats as threatening “to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror.”). R.P. argues that the evidence presented by the state was insufficient to prove the elements of the crime beyond a reasonable doubt. R.P. claims that the state did not prove beyond a reasonable doubt that (1) he threatened to commit a crime of violence or (2) he acted with the purpose to terrorize another person or in reckless disregard of the risk of terrorizing another.
In State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609 (1975), the Minnesota Supreme Court interpreted Minn. Stat. § 609.713, subd. 1, stating:
[a] threat is a declaration of an intention to injure another or his property by some unlawful act. The test of whether words or phrases are harmless or threatening is the context in which they are used. Thus the question of whether a given statement is a threat turns on whether the “communication ‘in its context’ would ‘have a reasonable tendency to create apprehension that its originator will act according to its tenor.’”
Schweppe, 306 Minn. at 399, 237 N.W.2d at 613 (quoting United States v. Bozeman, 495 F.2d 508, 510 (5th Cir. 1974)) (citations omitted).
Four students testified that toward the end of a class, during a Channel 1 television broadcast about the Columbine incident, R.P. made threatening statements that frightened them, including: “If you want me to shoot you, too, I could do that”; “If I wanted to, I could come back and shoot you in the head”; and “Do you want me to f---ing blow your head off just like they did?” R.P. denied making the statements. R.P. testified that he expressed his opinion about the Columbine shooting during a brief, teacher-led discussion at the beginning of class and that nothing he said was threatening. The district court determined that the testimony of three of the students was credible and that R.P.’s statements were not part of an academic discourse about the Columbine High School shooting but, on the contrary, were threats directed at R.P.’s classmates outside the scope of the classroom discussion. Considering the atmosphere of concern and fear surrounding the Columbine shooting, the district court determined that R.P. acted in reckless disregard of the risk of causing terror to the students. Viewing the evidence in the light most favorable to the district court’s determination, a fact-finder could reasonably determine that R.P. made terroristic threats.
KLAPHAKE, Judge (dissenting)
I respectfully dissent. I believe that we must proceed with caution when criminal convictions are based on speech, particularly when the speech presents an unpopular opinion arising out of a classroom discussion.
R.P. is charged with threatening to terrorize another in reckless disregard of the risk of causing such terror in another. Minn. Stat. § 609.713 (1998). The trial court findings note that the testimony of the prosecution witnesses is contradictory and relies heavily on post-incident gossip and hearsay, and that the two purported victims of the terroristic threat did not even bother to report the incident until summoned to the guidance office. The testimony of R.P., that he expressed sympathy for the Columbine shooters, but disagreed with their actions, is supported by an otherwise neutral witness. Both the trial court and the majority, however, dismiss this state of the testimony and instead conclude that because the statements were made the day after the Columbine shootings, the context supports a finding of reckless disregard of the risk of causing terror.
Both trial court and majority rely heavily on State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609 (1975), citing the same language:
Thus the question of whether a given statement is a threat turns on whether the communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.
Id., 306 Minn. at 399, 237 N.W.2d at 613 (citations and quotations omitted).
Context can cut two ways. Certainly, repeated threats or non-explicit threats backed by physical demonstrations can induce terror or apprehension where a single statement would not. See, e.g., State v. Murphy, 545 N.W.2d 909, 915 (Minn. 1996) (physical acts can communicate terroristic threat absent verbal communication); State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (where appellant made repeated explicit threats of violence, it was reasonable for jury to conclude that he was not expressing transitory anger). But we must proceed cautiously where an unpopular opinion is expressed in circumstances of hysteria.
“[I]t is not the purpose of [Minn. Stat. § 609.713, subd. 1] to ‘authorize grave sanctions against the kind of verbal threat which expresses transitory anger’ which lacks the intent to terrorize.” Jones, 451 N.W.2d at 63 (citing 10 U.L.A. Model Penal Code, Sec. 211.3 (Tent. Draft 1960), Sec. 211-3 Comments). The court in Schweppe noted: “We caution concerning the potential sweep of Minn. Stat. § 609.713, subd. 1, which, because of its broad language, carries with it the danger of prosecutorial abuse in that innocent or idle threats could be too easily construed to constitute a terroristic threat.” Schweppe, 306 Minn. at 405, 237 N.W.2d at 617, n.4.
We have here a young man, apparently not well known to his classmates, who takes an unpopular stance in a classroom discussion during an emotional period for school children. Even assuming that he made one or more of the statements attributed to him in the different versions offered to the court, the statements are conditional at best, and do not reflect a continuing pattern of behavior directed against his classmates. R.P. did not initiate the discussion and his comments were apparently an isolated incident that arose only because of the context. As Mr. Justice Sheran wrote in his well-reasoned dissent, “[The drafters of the Model Penal Code] did not contemplate that it would be utilized to punish behavior that might consist of nothing more serious than a flippant remark or an outright joke.” State v. Taylor, 264 N.W.2d 157, 160 (Minn. 1978).
I would reverse the adjudication of delinquency.
 On cross-examination, R.P. admitted to making irreverent jokes about the Columbine incident with two male friends following the Channel 1 program, but these statements were not witnessed by the complainants and were not part of the complaint.