This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed April 30, 2002
Robert H. Schumacher, Judge
John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant N.W.D.)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John J. Muhar, Itasca County Attorney, Michael J. Haig, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent State of Minnesota)
Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
On appeal from adjudication of delinquency for terroristic threats and possession of a dangerous weapon on school property, appellant N.W.D. challenges the sufficiency of the evidence. We affirm.
On January 27, 2000, N.W.D., who was then 14 years old, was standing in his high school's parking lot while D.S., R.B., and C.I. left the lot in D.S.'s truck. R.B. told D.S. that, 12 days earlier, N.W.D. had said he wanted "to put a cap" in D.S.'s head. D.S. drove back into the lot and toward N.W.D. After rolling down his window, D.S. asked N.W.D. if N.W.D. had a problem with him. According to D.S., N.W.D. replied, "Yeah, m‑‑‑‑‑f‑‑‑er, get out of here. Let's fight. I'll stick you right here." D.S. claims that N.W.D. repeated those statements while making a striking motion with a large butterfly knife. D.S. also claims that when he refused to get out of the truck, N.W.D. said, "You'll get it on Monday." That same evening, D.S. went to the police department to report the incident. Police Officer Brian Castellano went to N.W.D.'s house to discuss the incident, and found a pencil, not a knife, in N.W.D.'s pocket.
N.W.D. was charged with two counts of terroristic threats and one count of possession of a deadly weapon on school property. The district court found N.W.D. guilty of one count of terroristic threats and one count of possession of a dangerous weapon on school property, in violation of Minn. Stat. §§ 609.713, subd. 1, .66, subd. 1d(a) (1998). The district court then stayed an adjudication of delinquency and placed N.W.D. on probation. This appeal followed.
In determining whether the evidence was legally sufficient, a reviewing court "views the evidence in the light most favorable to the verdict and assumes the fact finder disbelieved any evidence" to the contrary. State v. Thomas,590 N.W.2d 755, 757 (Minn. 1999). The reviewing court will uphold the verdict
if the fact finder, giving due regard to the presumption of innocence and the state's burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty of the offense charged.
Id.at 757-58 (citation omitted).
1. Terroristic threats are defined as threatening
directly or indirectly, to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror[.]
Minn. Stat. § 609.713, subd. 1 (1998).
N.W.D. argues that the state failed to prove (1) that he made statements that could be considered threats to commit a crime of violence and (2) that he acted with the requisite intent to terrorize another or in reckless disregard of the risk of terrorizing another.
The Minnesota Supreme Court interpreted Minn. Stat. § 609.713, subd. 1, stating that 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, 399, 237 N.W.2d 609, 613 (1975) (quotation and citations omitted). 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, 915-16 (Minn. 1996) (stating that physical acts alone can communicate terroristic threat); State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (holding that where appellant made repeated explicit threats of violence it was reasonable for jury to conclude that he was not expressing transitory anger), review denied (Minn. Feb. 21, 1990).
The district court, as the trier of fact, is entitled to determine the credibility of witnesses and the weight given to evidence. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The district court found that N.W.D. verbally threatened to stick a large knife into D.S. and that he communicated the verbal threat "with anger, persistence, and seriousness" while brandishing the knife. The district court also found that N.W.D.'s actions and words caused those in the truck to feel shock and fear. When D.S. refused N.W.D.'s demands, N.W.D. threatened that he would get D.S. on Monday.
N.W.D. denies making that statement and claims he possessed a pencil, not a knife. R.B. testified, however, that N.W.D. pulled something out of his pocket and ordered D.S. to get out of the truck. C.I. said that he saw N.W.D. stabbing his own arm with what looked to be a knife while stating, "I am going to cut you." D.S., R.B., and C.I. testified that they were shocked and fearful.
To be convicted of terroristic threats, the defendant must also "utter the threat with the purpose of terrorizing another" or act with reckless disregard as to the risk of causing such terror. Schweppe, 306 Minn. at 400, 237 N.W.2d at 614. The word "terrorize" in Minn. Stat. § 609.713 means "to cause extreme fear by use of violence or threats." Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998) (quotation omitted), review denied (Minn. July 16, 1998). Circumstantial evidence may be used as evidence of intent. See State v. Berndt, 392 N.W.2d 876, 880 (Minn. 1986) (circumstantial evidence is entitled to as much weight as other kinds of evidence).
A conviction based on circumstantial evidence merits stricter scrutiny, but is proper if the circumstances proved are consistent with guilt and inconsistent with any other rational hypothesis.
State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000).
The district court found that N.W.D. acted with the purpose of terrorizing D.S. or "in a reckless disregard of the risk of causing such terror." By his own conduct and words, N.W.D. manifested his purpose to make D.S. believe that his threats were real and imminent. As a result, those in the pickup felt fear. Additionally, the evidence supports the district court's conclusion that, in the alternative, N.W.D. acted in reckless disregard of the risk of causing terror. Reckless disregard means that "defendant, even though not having the specific purpose of terrorizing another, recklessly risked the danger that the communication would cause extreme fear." 10 Minnesota Practice, CRIMJIG 13.109 (1999). Even if N.W.D. did not specifically intend to terrorize D.S., he risked the danger that his threatening statement, "stick you right here," while brandishing a large knife would cause fear.
N.W.D. argues that, even if he made a terrorizing statement, he made it in the heat of the moment due to his own fear. Contrary to N.W.D.'s contention, the circumstances do not suggest a high-pressure situation that would cause him fear. N.W.D. argues that he reasonably felt threatened after being cornered in a dark parking lot by three older and bigger persons. But the district court found that D.S. simply drove by and asked N.W.D. if he had a problem with him, because of N.W.D.'s former comment to "put a cap" in D.S.'s head. The evidence did not suggest any threat from those in the pickup.
N.W.D. further argues that even if he did say, "stick you right here," he did not threaten or terrorize D.S. due to the fact that D.S. was laughing during the entire incident. "The effect of a terroristic threat is not an essential element of the offense * * *." Sykes, 578 N.W.2d at 811. The evidence is sufficient to permit the fact finder to reasonably find N.W.D. guilty of terroristic threats.
2. "Whoever possesses, stores, or keeps a dangerous weapon * * * on school property is guilty of a felony * * *." Minn. Stat. § 609.66, subd. 1d (a) (1998). N.W.D. argues that, because no knife was ever recovered, the state failed to prove beyond a reasonable doubt that he possessed a knife. Here, the district court's finding that N.W.D. possessed the knife on school property is supported by the witness's testimony. D.S. testified that the knife N.W.D pointed had a four-inch blade. C.I. said that N.W.D. stabbed or sliced with what looked like a knife in his hand. T.C., who left the parking lot before the encounter, also testified that he noticed N.W.D. playing with a large knife that same night.
N.W.D. also argues that, because it is not designed as a weapon, a knife is not a dangerous weapon under the statute. Whether an instrument is a dangerous weapon under the statute is a purely legal question subject to de novo review. State v. Basting, 572 N.W.2d 281, 282 (Minn. 1997).
A dangerous weapon is defined as
any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, * * * or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm * * * .
Minn. Stat. § 609.02, subd. 6 (1998) (emphasis added). Thus, there are three categories of devices that satisfy the definition of dangerous weapons under the statute: (1) firearms; (2) devices designed as weapons and capable of producing great bodily harm or death; and (3) devices, which in the manner used or intended to be used, are calculated or likely to produce great bodily harm or death. State v. Moss, 269 N.W.2d 732, 735 (Minn. 1978). Ordinarily, in determining whether an object is a dangerous weapon, a court must examine not only the nature of the object itself but also the manner in which it was used. See, e.g., State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (stating that defendant brandished buck knife in such manner that jury could have found it was used as dangerous weapon); State v. Coauette, 601 N.W.2d 443, 447 (Minn. App. 1999) (observing that ordinary objects can be transformed into dangerous weapons and citing examples), review denied (Minn. Dec. 14, 1999).
We do not address N.W.D.'s argument that the knife is not designed as a weapon. As discussed in Moss, any device can be a dangerous weapon regardless of its intended design. See Moss, 269 N.W.2d at 735-36. Here, N.W.D. brandished the knife in such a manner that the district court could have found it was used as a dangerous weapon. The evidence is sufficient to permit the fact finder to reasonably find N.W.D. guilty of possessing a dangerous weapon.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.