This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Shawn Henry Wellner,


Filed September 24, 2002


Stoneburner, Judge


Hennepin County District Court

File No. 01025389


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


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, Minnesota Public Defender, Melissa Sheridan, Assistant Public Defender, Suite 254, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N



            On appeal from a conviction of terroristic threats, appellant Shawn Henry Wellner argues that the evidence was insufficient to support his conviction and contends that the district court committed prejudicial errors that affected his substantial rights.  Because an erroneous jury instruction, together with the district court’s failure to answer the jury’s question, affected Wellner’s substantial rights, we reverse.



Wellner and his ex-girlfriend, Susan Antalik, had been involved in an on-and-off relationship for approximately six or seven years.  On March 24, 2001, Antalik  left the apartment she shared with Wellner to avoid a confrontation.  She went to the home of Wellner’s sister, Stephanie Houle.  Wellner later arrived at Houle’s house with a friend, David Johnson.  Wellner entered Houle’s kitchen and placed a cooler on the table.  He took a gun out of the cooler and put it on the table so that Houle and Antalik could look at it.  All present described what occurred next differently.

            Johnson testified that Wellner did not do anything with the gun, Houle asked them to leave, and they asked Antalik for a ride to the liquor store, but she refused to take them.  Johnson said that Wellner yelled at Antalik, and then Johnson and Wellner left to take the gun to a neighbor to see if he wanted to buy it.  Before they got to the alley, however, police officers arrived and arrested Wellner.

            Houle testified that she thought Wellner was drunk because he was “loud.”  She said he took the gun, in a holster, and a box of bullets out of the cooler.  Houle asked Wellner to take the gun out of her house but Wellner then waved the gun around and said he wanted her kids to see it.  Houle said Wellner spun the gun’s cylinder and said “somebody is going to get hurt.”  She testified that Wellner’s mood switched between “joking around” and “mad.”  Houle said she tried to get the gun from Wellner but could not.  She testified that Wellner and Antalik started arguing and that they moved into the living room.  Houle said she followed, got between them, and pushed Wellner away, after which Wellner left, taking the gun and cooler with him.  Houle testified that as he left, Wellner said that he was going to “bust up” Antalik’s car.

Antalik testified that Wellner became agitated when Houle objected to his showing the gun to her son.  Antalik said she went into the living room to stop Wellner from walking into the child’s bedroom and he “pinned” her and Houle between the front door and side wall and tried to “swing” at her saying he did not want her involved in his family’s business.  Wellner then went back to the kitchen.  Antalik testified that Wellner picked up the gun and waved it around, then put a bullet in the gun, spun the chamber, and, pointing it at her, said: “Somebody in this house is going to get hurt.”  She said Wellner then pointed the gun away from her and grabbed it by the barrel.  Antalik said she went to the bedroom to call the police but was so shaken she could not dial and returned to the kitchen.  Wellner took the gun with him and left with Johnson, but Wellner came back and told Antalik to stay out of his family’s business.  He left again saying that he was going to keep her from leaving Houle’s house.  This statement caused Antalik to worry that he would do something to her car.  She got Houle’s son to dial 911 for her and the police arrived within in a minute or two.  Antalik testified that two days after this incident she got an order for protection against Wellner.

At trial, Antalik also testified that on March 21, 2001 she and Wellner had a fight, and he took out a gun, which he kept in his dresser, and said, “[y]ou had better not never leave me.”

For the events that occurred on March 24, 2001 at Houle’s house, the state charged Wellner with assault in the second degree, in violation of Minn. Stat. §§ 609.222, subd. 1; 609.101, subd. 2; 609.11 (2000), and two counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000).

            Following a trial, the jury found Wellner guilty of the charge of terroristic threats as to Antalik and not guilty of the charge of terroristic threats as to Houle.  The jury also found Wellner not guilty of assaulting Antalik.  The district court stayed imposition of sentence, ordered Wellner to serve 94 days in the Hennepin County Adult Correction Facility, and placed Wellner on probation for three years.  This appeal followed.



I.          Evidentiary Error


            Wellner contends that the district court erred by admitting evidence that Antalik had obtained an order for protection against him immediately following the

incident at Houle’s house.  Wellner’s attorney did not object to the admission of this evidence at trial.  As a result, Wellner must show that admission of the fact that Antalik had obtained an order for protection was “plain error affecting substantial rights.”  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Minn. R. Crim. P. 31.02). 

There is a three-prong test for plain error.  Id.  Before an appellate court will review an “unobjected-to error, there must be 1) error; 2) that is plain; and 3) the error must affect substantial rights.”  Id. (citation omitted).

Wellner contends that admission of the fact that Antalik obtained an order for protection against him was “plain error,” citing State v. Spencer, No. C4-97-1774, 1998 WL 422186 (Minn. App. July 28, 1998), an unpublished opinion from this court, in support of this argument.

In Spencer, the court held that the district court abused its discretion by admitting evidence of an order for protection against Spencer, who was charged with making terroristic threats.  Id. *1-*2.  The state introduced a copy of the order as probative evidence of the victim’s reaction to threatening calls made by Spencer.  Id. at *1.  The victim testified that she believed that Spencer was present at the hearing and had opposed the restraining order.  Id.  Although the district court gave a Spreigl-type cautionary instruction, this court concluded that “admitting a document that gave a seal of judicial approval to the criminal charge was not within the trial court’s discretion.”  Id. at *1-*2.  This court reversed the conviction, holding that “a reasonable possibility exists that the admission of the harassment restraining order significantly affected the jury’s verdict.”  Id. at *2.

Unpublished opinions of the Court of Appeals are not precedential.  Minn. Stat.    § 480A.08, subd. 3(c) (2000); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993).  In addition, Spencer is not persuasivebecause the evidence introduced in this case is distinguishable from the evidence admitted in Spencer.  Here, Antalik merely stated, in response to an unobjected-to question, that she had obtained an order for protection two days after the incident.  The order was not introduced, and therefore no inference was created that a judge had already determined that Wellner committed the offense.  Furthermore, Wellner concedes that Antalik’s fear was relevant on the issue of intent.  See State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975)(stating that the victim’s reaction to the threat was circumstantial evidence relevant to the element of Schweppe’s intent in making the threat).  Although we do not condone the introduction of this evidence, we cannot find on this record that admission constituted plain error that affected Wellner’s substantial rights.

II.        Sufficiency of the Evidence

Wellner also contends that the state failed to present sufficient evidence that he intentionally threatened to commit a crime of violence against Antalik.  In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On review, this court must “assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.”  State v. McKenzie, 511 N.W.2d 14, 17 (Minn. 1994) (citation omitted).  A reviewing court will not disturb a verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Whoever threatens, directly or indirectly, to commit any crime of violence with the purpose of terrorizing another is guilty of terroristic threats.  Minn. Stat. § 609.713, subd. 1.  The jury convicted Wellner of violating Minn. Stat. § 609.713, subd. 1, for making terroristic threats against Antalik.  We conclude that evidence in the record that Wellner pointed a gun at Antalik and said “somebody is going to get hurt” could support a conviction for terroristic threats against Antalik. 

III.       Jury Instructions


            Wellner conceded at oral argument that there could have been sufficient evidence to support his conviction for terroristic threats “if the jury had been instructed properly” but argues that he should be granted a new trial because the court’s erroneous jury instruction was plain error.

Although Wellner did not object to the jury instructions at trial, this court has the discretion to consider this issue on appeal if the instruction was plain error.  See Griller, 583 N.W.2d at 740. 

The district court provided these instructions to the jury:

The elements of making terroristic threats are: First, the defendant threatened, directly or indirectly, to commit a crime of violence.  You are instructed that terroristic threat is a crime of violence. * * * Second, the defendant made the threat with intent to terrorize Susan Antalik or Stephanie Houle, or in reckless disregard of the risk of causing such terror.


These jury instructions match the language suggested in CRIMJIG 13.107.  See 10 Minnesota Practice, CRIMJIG 13.107 (1999).  According to CRIMJIG 13.107, the first element of making a terroristic threat is that “the defendant threatened, directly or indirectly, to commit a crime of violence. [You are instructed that _______ is a crime of violence.]” 

In this case, however, the district court erroneously filled in the blank with  “terroristic threat,” which was not the underlying crime that Wellner was charged with threatening to commit.  A “crime of violence,” as the term is used in the statute prohibiting terroristic threats, has the same meaning as a “violent crime,” which is defined in Minn. Stat § 609.1095, subd. 1(d) (2000).  See Minn. Stat. § 609.713, subd. 1.  A terroristic threat is not defined as a “violent crime” in Minn. Stat. § 609.1095, subd. 1(d).  A terroristic threat is not a crime of violence and therefore the instruction given materially misstates the law.  As a result, the district court’s instruction constitutes error.  See State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (“An instruction is in error if it materially misstates the law.”)  (citation omitted). 

In some circumstances, it is possible that such an error would not have affected the substantial rights of a defendant, but in this case the error was compounded when the district court refused to answer a question the jury asked during deliberations.  The jury asked: “Does it matter if a terroristic threat is towards a person or against a person’s property?”  The district court replied:

You have all the instructions as to the law that the Court is able to give you.  So you have all the instructions that the Court is able to give you.


Wellner correctly contends that:

The court should have told the jury that it could not convict Wellner of terroristic threats if the threat was toward property rather than toward a person because a property crime does not meet the statutory definition of “crime of violence.”


The only crime against property that is considered a “crime of violence” under the terroristic-threats statute is arson.  See Minn. Stat. § 609.1095, subd. 1(d).  Wellner argues that the court had a duty to inform the jurors that a property crime is not a crime of violence.  See Minn. R. Crim. P. 26.03, subd. 18(5) (“In charging the jury the court shall state all matters of law which are necessary for the jury’s information in rendering a verdict * * * .”)  We agree that this failure to give the jury the law necessary to render a verdict also constitutes error.

An error affects a defendant’s substantial rights “if the error was prejudicial and affected the outcome of the case.”  Griller, 583 N.W.2d at 741 (citation omitted).  The supreme court has defined plain error in instructing the jury as prejudicial when

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. (quotation omitted).  The appellant bears the burden of proving that the error had a significant effect on the verdict.  Id.

            We hold that Wellner has met his burden of proving that the district court’s errors in instructing the jury were prejudicial and affected the outcome of the case.  The jury found Wellner not guilty of second-degree assault and not guilty of terroristic threats as to Houle despite the fact that Antalik’s and Houle’s testimony about how Wellner handled the gun and what he said was similar.  The jury specifically asked whether a threat against property was a crime of violence.  The only instruction the jury had defining a crime of violence was the erroneous statement that a “terroristic threat is a crime of violence.”  The jury returned a guilty verdict 35 minutes after receiving the judge’s response to their question regarding whether it made a difference if the threat was against a person or property.  Consequently, there is a reasonable likelihood that the district court’s erroneous instruction affected the verdict. 

We conclude that a new trial is necessary to ensure that Wellner receives a fair trial.  See id. at 742 (noting that before granting a new trial on the basis of an unobjected-to error, the court must “consider whether a new trial is necessary to ensure fairness and the integrity of judicial proceedings”) (citation omitted).