This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Ray Howard Knaeble,




Filed February 12, 2002

Foley, Judge


Itasca County District Court

File No. K2001657


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


John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Fourth Street Northeast, Grand Rapids, MN 55744 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

Appellant challenges his conviction for making terroristic threats arguing the district court directed a verdict for the prosecution by instructing the jury that appellant’s threat to kill constituted a crime of violence under the statute.  We disagree.


            If appellant does not object to the jury instructions at trial, reviewing courts have the discretion to consider the issue on appeal “if it is plain error affecting substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citation omitted).  There is a three-prong test for plain error, “requiring that before an appellate court reviews an unobjected-to error, there must be (1) error;  (2) that is plain; and (3) the error must affect substantial rights.”  Id. (citing Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544, 1549 (1997)).  “If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.”  Id. (citation omitted). 

            The third prong, which requires that the error affect substantial rights, “is satisfied if the error was prejudicial and affected the outcome of the case.”  Id. at 741.  The defendant bears the “heavy” burden of persuasion on this third prong.  Id.  Plain error is prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Id. (citation omitted).

            Although appellant failed to object to the jury instructions during the trial, he now contends it was error to instruct the jury that threatening to kill the victim is a crime of violence.  We disagree.

            Minn. Stat. § 609.713, subd. 1 (2000) states that “[w]hoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another” is guilty of terroristic threats.  The term “crime of violence” is defined the same as “violent crime” in Minn. Stat. § 609.1095, subd. 1(d).  Id.  Appellant states that threatening to kill someone is not a crime of violence within the meaning of Minn. Stat. § 609.1095, subd. 1(d); however, first-, second-, and third-degree murder, as well as first- and second-degree manslaughter, are listed as “violent crimes” under the statute.  Minn. Stat. § 609.1095, subd. 1(d).  Threatening to kill is, therefore, a threat to commit a “crime of violence” for purposes of the terroristic threats statute.  Cf. State v. Schweppe, 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975) (stating that threatened killing was a “crime of violence” under homicide statutes then in effect).

            Appellant argues that the judge’s instruction stated the first element was satisfied. We disagree.  The judge’s instructions stated,

[t]he elements of making a terroristic threat are: first, the defendant threatened directly or indirectly to commit a crime of violence. You are instructed that threatening to kill Michael George Wiest is a crime of violence. It need not be proven that the defendant had the actual intention of carrying out the threat.”


The judge instructed the jury that threatening to kill the victim is a crime of violence.  Read in context, this instruction did not tell the jury that this element was satisfied in this case or that appellant actually made the threat.  The judge merely instructed that making a threat to kill is a threat to commit a crime of violence, which it is, and therefore the jury did not need to decide whether it is a crime of violence.  Moreover, jury instructions are considered as a whole.  State v. Glowacki, 630 N.W.2d 392, 402 (Minn. 2001).  The jury was also instructed that to return a verdict of guilty, it must find that all three elements were proven beyond a reasonable doubt.  

            Appellant argues the instructions “left the jury with no alternative but to determine that [his] alleged threat constitutes a crime of violence.”  We disagree.  Appellant must show more than an error; he must show that it was plain error that prejudiced the case and affected its outcome.  Griller, 583 N.W.2d at 740.  Specifically, appellant must show a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Id. at 741.  Killing someone is a crime of violence—the jury could not have reasonably reached any other conclusion.  Moreover, that conclusion, a legal conclusion completely independent of the facts of this case, fell far short of establishing appellant’s guilt.  The jury still had to decide whether appellant actually made the threat and whether he made it with the purpose of terrorizing or in reckless disregard of terrorizing another.

            Appellant argues the jury was precluded from considering whether he threatened a crime of violence.  Appellant cites State v. Carlson, 268 N.W.2d 553, 560 (Minn. 1978), for the proposition that he was entitled to have all of the elements of the crime submitted to the jury even if the evidence relating to the element is uncontradicted.  The district court, however, submitted all three elements to the jury and instructed the jury that it must decide whether the state proved all of the elements beyond a reasonable doubt.  The definition of “crime of violence” was not a factual issue as to which contradictory evidence could be presented, but a legal issue admitting of a single conclusion. 



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