This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Derrick NMN Simmons,




Filed November 26, 2002


Toussaint, Chief Judge


Hennepin County District Court

File No. 00047429



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


Amy Klobuchar, Hennepin County Attorney, Jean Elizabeth Burdorf, Assistant County Attorney, 2000 Courts Tower, Minneapolis, MN 55487 (for respondent)


Michael C. Davis, Special Assistant State Public Defender, 46 East Fourth Street, Suite 1042 Minnesota Building, St. Paul, MN 55105 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

Appellant Derrick Simmons challenges his conviction of terroristic threats under Minn. Stat. § 609.713, subd. 1 (2000).  Simmons argues that the evidence presented at trial was too incredible, too inconsistent, or too ambiguous to support the jury’s verdict. Because the evidence presented at trial was sufficient to support the conviction, we affirm.


In March 2000, a Golden Valley detective began investigating a car theft at the dealership where Tommy Lee Riley worked.  Riley told the detective that he believed that Simmons had taken the car.  One month later, Riley testified that Simmons had driven past Riley’s house in a blue sport-utility vehicle while sticking his hand out of the window, imitating the shooting of a gun.  Simmons contends that he did not have access to that type of vehicle at the time.  Riley immediately reported the incident to the detective, who stated that Riley seemed “scared.”

Two weeks later, Simmons was charged in connection with the car theft.  Shortly thereafter, Simmons received the criminal complaint containing Riley’s initials, identifying him as an informant. 

On May 15, 2000, Riley was pumping gas at a Minneapolis gas station when a dark blue sport-utility vehicle in which Simmons was riding approached Riley’s car. Simmons accused Riley of providing the police with information, but Riley denied doing so.  Simmons said that Riley had a “nice car,” but that “it won’t be nice for very long.”  A companion of Simmons then stated, “Somebody need to smoke the ni***r.”  Simmons responded, “Somebody is going to smoke that ni***r.”  Riley was frightened by the latter statement, which he interpreted as a threat to shoot him.

Witnesses Manchaes Whitson and Roy McCall were sitting in Riley’s car during the incident at the gas station.  Whitson, who was in the back seat, did not hear the content of the conversation between Simmons and Riley, but Whitson testified that when Riley returned to the car, he acted like “something” had happened.  McCall, who was in the front seat, heard someone call out Riley’s name, saw that Riley was arguing with someone, and could hear a portion of the conversation where someone said, “I smoked a ni***r.”

Simmons left the gas station in the sport-utility vehicle and drove across the street to a parking lot, where he remained.  Riley took his two passengers home and called the police, who indicated that Riley sounded “very stressed out” and “scared for his life.”  The police instructed Riley to return to the gas station to retrieve the license-plate number from Simmons’s vehicle.  He did so, and the vehicle was later found to be registered to Simmons’s girlfriend.

The next day, police arrested Simmons after engaging him in a 3.7-mile automobile chase.

Riley filed a restraining order against Simmons, and both appeared at a June 2000 hearing.  Riley later testified that during the hearing, Simmons quietly sang a rap song with the subject of shooting people.  Riley was very upset by the encounter and told a witness advocate that Simmons was talking “trash” during court.

At Simmons’s February 2001 trial, several witnesses testified as to Riley’s truthfulness, including his former fiancée, his brother, his aunt, and a co-worker.  Riley’s co-worker testified that he believed that Riley was a truthful person, while the others testified negatively regarding his truthfulness. The jury found Simmons guilty of committing terroristic threats, and Simmons was sentenced to 24 months in prison.  This appeal follows.


In considering a claim of insufficient evidence, this court’s review is limited to a painstaking 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).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  A reviewing court will not disturb the 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).

Simmons was convicted of terroristic threats under Minn.  Stat. § 609.713, subd. 1 (2000), which provides:

Whoever threatens, 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 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.


Under this statute, the state must prove that


(1) the accused made threats (2) to commit a crime of violence (3) with purpose to terrorize another or in reckless disregard of the risk of terrorizing another.

State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).  “Purpose in this context means aim, objective, or intention.  Terrorize means to cause extreme fear by use of violence or threats.”  Schweppe, 306 Minn. at 400, 237 N.W.2d at 614 (citations omitted).  A terroristic threat, then, 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.’’

Id. at 399, 237 N.W.2d at 613 (quotation marks as supplied) (citations and quotations omitted).

Simmons argues that there was not a sufficient credible evidentiary basis for the jury to have determined that he carried out terroristic threats.  Specifically, he argues that (1) there is a doubt as to what words were used; and (2) there is no proof of intent to terrorize.  We disagree.

Riley’s testimony, substantially corroborated by McCall, provides a sufficient basis for a jury to reasonably conclude that the words Simmons said were terroristic in nature.  When Simmons said, “Somebody is going to smoke that ni***r,” a jury could reasonably determine that that “somebody” was Simmons.  Further, Riley’s prompt report to police and reported fear further bolstered his testimony.  See State v. Bingham, 406 N.W.2d 567, 569 (Minn. App. 1987) (holding that victim’s prompt reporting of the incident is strong corroborating evidence).

The evidence also supports a finding that Simmons possessed the required mental state for terroristic threats.  While a threat need not actually cause fear in the victim, the victim’s reaction to the threat can be “circumstantial evidence” relevant to the defendant’s intent.  Schweppe, 306 Minn. at 401, 237 N.W.2d at 614.  The context in which Simmons stated that someone will “smoke that ni***r,” combined with testimony regarding Riley’s fear when reporting the incident to the police, was sufficient circumstantial evidence to demonstrate Simmons’s intent to cause fear in Riley.

Finally, Simmons argues that the statements were of a transitory nature.  To support this position, he contrasts the conduct at issue here with that in State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (“threatening” tone and imminent release from prison were not “transitory anger”), and State v. Fischer, 354 N.W.2d 29, 34 (Minn. App. 1984) (discharging a gun and threatening to kill over a six-hour period not “transitory anger”), review denied (Minn. Dec. 20, 1984).  We do not believe that these cases help Simmons.  The evidence presented by the state, including showing several weeks between the incidents, is sufficient for a jury to conclude that Simmons’s conduct was not of a “transitory nature.”

To successfully challenge the jury’s verdict, Simmons must overcome the strong presumption that the jury reasonably believed the state’s witnesses and disbelieved contrary evidence.  See Moore, 438 N.W.2d at 108.  He has not met this burden.  While the other witnesses did not corroborate Riley’s testimony verbatim, the minor differences in their testimony did not create a significant variance from Riley’s version of the events.  After considering the evidence presented, the jury reasonably could have found that (1) Simmons made one or more threats in retaliation for Riley’s implication of Simmons in the car theft; (2) Riley feared for his life; (3) Riley believed that Simmons would carry out his threat; and (4) the threats were designed to terrorize Riley.

In sum, the evidence is sufficient to support the verdict that Simmons made statements that were threats with the purpose of terrorizing another or with reckless disregard of the risk of terrorizing another.


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