This opinion will be unpublished and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

C6-00-881

 

 

In the Matter of the
Delinquency of:  D.L.O., Juvenile.

 

 

Filed December 19, 2000

Affirmed
Foley, Judge
*

 

Marshall County District Court

File No. J39950099

 

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

 

Michael D. Williams, Marshall County Attorney, P.O. Box 159, 208 East Colvin Avenue, Warren, MN  56762 (for respondent county)

 

John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant D.L.O.)

 

Considered and decided by Crippen, Presiding Judge, Foley, Judge, and Holtan, Judge.**


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant D.L.O. challenges his delinquency adjudication for terroristic threats, arguing that the evidence is insufficient to establish that he threatened to commit a crime of violence.  Additionally, appellant contends that even if the statement could be construed as a threat, it lacked the requisite intent to terrorize others.  In his pro se supplemental brief, appellant also argues sufficiency of the evidence, ineffective assistance of counsel, abuse of power by the district court judge, inability to receive court transcripts, and denial of his right to an education.

FACTS

            On November 9, 1999, 13-year-old D.L.O. was absent from school for part of the day for a physical examination.  This examination was required because D.L.O.’s mother was voluntarily placing him at Archdeacon Gilfillan Center (Gilfillan) the following day. During the examination, D.L.O.’s mother informed him that he would be placed at Gilfillan, but she indicated that Gilfillan was a detention center, not a long-term treatment facility.  Following the examination, D.L.O. returned to school.  During the last class period of the day, D.L.O. was in the resource room where teachers Carol Batko and Shellie Geihsler were present.  D.L.O leaned his chair back on two legs, and Batko told him to put all four legs on the floor.  He refused and tipped over backwards.  D.L.O. got up, and Batko told him to take out some homework, but he refused.  At some point, Geihsler spoke to D.L.O. and referred to him by his first name.  D.L.O. replied that he had changed his name to Dylan Klebold.  Geihsler was not familiar with that name and asked D.L.O. to explain.  D.L.O. replied that Klebold was one of the shooters from the Columbine shooting incident.  Geihsler then turned to go speak to Batko.  As Geihsler was walking away, she heard D.L.O. say, "I am going on a shooting spree."  Upon hearing this, Geihsler turned around and looked at D.L.O.  He then said, "You didn’t hear that, did you?"  Geihsler replied that she had heard him and reported the incident to the dean of students at the high school. 

A couple of days after the incident, a school secretary checked D.L.O.’s locker for homework assignments.  She found a completed assignment containing the names of serial killers, satanic phrases, and poetry about burning people.  She also found a drawing of someone shooting children at a school.  When questioned about the drawing, D.L.O. stated that he was the shooter in the drawing.

            On November 19, 1999, respondent Marshall County filed a petition alleging that D.L.O. was a delinquent child because he made terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1998).  D.L.O. pleaded not guilty, and the case was set for trial. After trial, the district court adjudicated D.L.O. delinquent.  The court placed D.L.O. on indefinite probation and ordered him to complete the Gilfillan program.  The court further ordered D.L.O. to receive therapy after completing the program and provided that D.L.O. would be matched with a male mentor and have only supervised access to the Internet.  This appeal followed.

D E C I S I O N

I.  Sufficiency of Evidence

            D.L.O. challenges his adjudication of delinquency, claiming that the evidence is insufficient to find him guilty of communicating a terroristic threat.  The statute provides:

Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, * * * or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

 

Minn. Stat. § 609.713, subd. 1 (1998).

 

In determining whether the evidence was legally sufficient, this court evaluates the record and the legitimate inferences from the record in the light most favorable to the adjudication of delinquency.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).  The evidence must be sufficient, given the presumption of innocence, to permit the fact-finder to reach a guilty verdict, and it must be assumed that the fact-finder disbelieved the defense witnesses and believed those of the state.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995); see also In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (applying same standard in juvenile matters).

            D.L.O. claims that the state did not prove beyond a reasonable doubt that he threatened to commit a crime of violence or acted with the purpose to terrorize another person or in reckless disregard of the risk of terrorizing another.

            D.L.O. contends that, even accepting the juvenile court’s finding that he made the alleged statement, the statement did not constitute a threat to commit a crime of violence as the term has been defined in Minnesota.

            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.”

 

State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609, 613 (1975) (quotation and citations omitted). 

            Examining the context in which the words were used, the record supports the district court’s determination that D.L.O.’s statement constituted a threat to commit a crime of violence.  Immediately before D.L.O. made the alleged threat, he stated to Geihsler that his name was no longer D.L.O. and that he had changed it to Dylan Klebold. When questioned by Geihsler about why he would change his name, D.L.O. replied that Klebold was one of the shooters from the Columbine school incident.  Thereafter, D.L.O. made the statement, heard by Geihsler, about going on a shooting spree.  A communication about going on a shooting spree, mentioned in the context of the Columbine incident, would have a reasonable tendency to create an apprehension that D.L.O. would act according to his statements and could terrorize the entire school population.

            D.L.O. argues that, even if the statement he made could be construed as a threat, the state failed to prove that he acted with the requisite intent.  To be convicted of making terroristic threats, a defendant must "utter the threat with the purpose of terrorizing another" or act with reckless disregard as to the risk of causing such terror.  Schweppe at 400-01, 237 N.W.2d at 614.  Because the state’s witnesses were not afraid and reported the incident not out of fear, but because school policy required it, D.L.O. contends that there is no evidence that he intended to frighten anyone or knew or should have known that fear would result.  The district court held that "[D.L.O.] made this threat in reckless disregard of the risk of causing terror to the teachers and anyone else present in the research room or in the school."  Contrary to D.L.O.’s contention, intent to cause fear or knowledge that fear would result are not necessary elements of terroristic threats.  The record supports the district court’s finding that D.L.O. acted in reckless disregard of the risk of causing terror.

II.                Pro Se Arguments

            Ineffective Assistance of Counsel

D.L.O. claims ineffective assistance of his trial counsel. 

            The defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  D.L.O. presents several examples of conduct by his trial counsel that he believes fell below an objective standard of reasonableness.  Even assuming the truth of his assertions, however, D.L.O. did not provide any evidence that the result of the proceeding would have been different absent these errors from his counsel.  D.L.O. must affirmatively prove both elements.  Without this evidence, his ineffective assistance of counsel argument lacks merit.

Abuse of Power by Judge

D.L.O. contends that there was an adversarial relationship between his mother and the district court judge’s ex-wife.  On the basis of this relationship, D.L.O. asked his attorney to request a different judge.  Because D.L.O.’s counsel did not file a notice to remove the judge, D.L.O. contends that there was an abuse of the judge’s power. This issue is tied to D.L.O.’s ineffective assistance of counsel argument, which, as stated above, is without merit.  Further, because the argument dealing with abuse of power by the district court judge was not raised below, this court need not address this issue.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court may only consider those issues raised and addressed by district court).  Additionally, there is no evidence of bias in the record.

Transcripts

D.L.O. also contends that he was "given the run-around" when attempting to obtain transcripts from the county attorney and his attorney.  It is important to bear in mind that this court accepted D.L.O.’s pro se supplemental brief.  This is analogous to a criminal defendant’s brief.  D.L.O. had a right to expect that his attorney would provide him with the transcript in order for him to prepare his pro se brief.  D.L.O. was not well served by his attorney who he asserts gave him the “run around” concerning his request for the transcript.  It was not incumbent on D.L.O. to order a transcript from the court reporter. Defense counsel could have easily requested another copy of the transcript.  We have carefully reviewed this case, however, and find no reversible error even though D.L.O. lacked a transcript.  This court is mindful of D.L.O.’s position in the facts and issues and has duly considered his claims.

            Right to Education

D.L.O. contends that he is being denied his right to an education because the school requires a doctor’s recommendation before he is allowed to return to school.  He also argues that this requirement is in violation of the Pupil Fair Dismissal Act, Minn. Stat. § 121A.40-.56 (1998).  There is no basis for this argument because D.L.O. is not being denied access to school; he is simply required to provide a note from his doctor. This requirement is neither a violation of his right to an education nor is it a violation of the Pupil Fair Dismissal Act.

            Search and Seizure

            D.L.O. also raises the issue of illegal search and seizure with regard to the documents obtained from his locker.  This issue was not raised at trial and therefore should not be considered by this court on appeal.  See Thiele, 425 N.W.2d at 582 (reviewing court may only consider those issues raised and addressed by district court).  Additionally, the record indicates that the dean of students testified that the school policy book notifies students that the school reserves the right to check lockers.  Further, school lockers remain the property of the school district and may be searched by school authorities "for any reason at any time, without notice, without student consent, and without a search warrant." Minn. Stat. § 121A.72, subd. 1 (1998). 

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.