This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Terrance Deon Anderson,
Filed January 14, 2003
Anoka County District Court
File No. K4-01-4191
Melissa V. Sheridan, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert M.A. Johnson, Anoka County Attorney, Mary K. Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.*
Appellant Terrance Deon Anderson appeals his terroristic threats conviction. Appellant claims that the district court abused its discretion by failing to instruct the jury on the definition of a “crime of violence” given that the crime charged involved threatening to commit a “crime of violence.” Because the district court adequately instructed the jury on the charge of terroristic threats, we affirm.
On 13 May 2001, Narkeetha Hanyard, appellant’s former girlfriend, attended a party at which appellant was present. Apparently, the two had an altercation sometime during the party. After Hanyard left the party, she returned to her apartment in Spring Lake Park. Because Hanyard’s son became frightened, they placed a large moving box filled with clothing and other items in front of the apartment door. Hanyard locked the door and went to bed.
At approximately 2:00 a.m., appellant’s attempt to enter the apartment awakened Hanyard. Hanyard told appellant to leave, but he entered the apartment and forced Hanyard to retreat down the hallway. He told her, “I love you, but I’m going to have to hurt you,” and, “I’m going to kill you.” Hanyard feared the appellant was going to hit her and she threatened to call the police. Appellant responded, “No, you are not.” She then asked him to leave and he told her, “No, I’m going to kill you.” Appellant lunged at Hanyard “like he was going to do something.” Hanyard then called the police and appellant left the apartment.
A short while later, a police officer arrived at Hanyard’s apartment and interviewed her. Another police officer found appellant on the street and arrested him.
Appellant was charged with first-degree burglary and terroristic threats; appellant pleaded not guilty, and the matter was tried to a jury.
At the conclusion of the trial, the district court instructed the jury that
[t]he elements of making a terroristic threat are, first, the defendant threatened, directly or indirectly, to commit a crime of violence. It need not be proven that the defendant had the actual intention to carry out the actual threat.
Appellant did not object to this instruction.
The jury found appellant guilty of the terroristic threats charge and not guilty of the burglary charge. He was sentenced to 15 months in prison, execution stayed on various conditions, including five years’ probation, 100 days in jail, and payment of $1,000 restitution. This appeal followed.
Appellant claims that the district court committed plain error in instructing the jury. He argues that the district court should have defined what constitutes a “crime of violence” in order to convict him of making a terroristic threat.
District courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). This court will not reverse a district court’s decision unless the instructions constituted an abuse of discretion. See id. “An instruction is in error if it materially misstates the law.” State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).
Because appellant did not object to the jury instructions, he has waived the right to object to them on appeal. See State v. Glowacki, 630 N.W.2d 392, 398 (Minn. 2001) (stating that, in general, a party waives the right to appeal a jury instruction if he fails to object to it at trial); see also Minn. R. Crim. P. 26.03, subd. 18(3) (“No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict.”).
Even if an appellant did not object to the jury instructions, however, reviewing courts nevertheless have 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) (citing Minn. R. Crim. P. 31.02). There is a three-prong test for plain error, to wit, “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, 467, 117 S. Ct. 1544, 1549 (1997)). If all prongs are satisfied, then the appellate court can assess “whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” Id. (citing Johnson, 520 U.S. at 469, 117 S. Ct. at 1550).
Minn. Stat. § 609.713, subd. 1 (2000), provides that a defendant is guilty of a terroristic threat if the defendant “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 * * * .” A crime of violence is defined in Minn. Stat. § 609.1095 (2000). Among the crimes included in a crime of violence are: first, second, and third degree murder (Minn. Stat. § 609.185, .19, .195); manslaughter in the first and second degree (Minn. Stat. § 609.20, .205); assault in the first, second, and third degrees (Minn. Stat. § 609.221, .222, .223).
The district court provided the following instructions:
The elements of making a terroristic threat are, first, the defendant threatened, directly or indirectly, to commit a crime of violence. It need not be proven that the defendant had the actual intention to carry out the actual threat.
The instruction tracks the language suggested in CRIMJIG 13.107. 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.]” 10 Minnesota Practice, CRIMJIG 13.107 (1999) (footnote omitted).
The first step in our analysis of this issue is to determine whether the district court’s failure to include the definition of a crime of violence was error. “[I]t is well settled that the court’s charge to the jury must be read as a whole, and if, when so read, it correctly states the law in language that can be understood by the jury, there is no reversible error.” State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998) (citing State v. Anderson, 261 Minn. 431, 435, 113 N.W.2d 4, 7 (1962)). In making the evaluation, we assume that the jurors were intelligent and practical people. Id.
The district court adequately instructed the jury on the applicable statute. Although the instruction did not define a crime of violence (as would have been the better practice), it can be assumed that an intelligent and practical juror would know that a threat to kill another person is a threat of a crime of violence.
Moreover, even if the instructions were error, the error was not plain. A plain error is an error that is clear or obvious. State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002). “[I]t is sufficient that the error is plain at the time of the appeal.” Id. (quotation omitted). Here, there was no clear or obvious error. The district court followed the jury instructions presented in CRIMJIG 13.107 and merely left out optional language. This is not plain error.
Finally, we must determine whether the alleged error affected appellant’s substantial rights, that is, whether the error was prejudicial. In other words, is there a reasonable likelihood that the erroneous instruction significantly affected the verdict? Griller, 583 N.W.2d at 741. Here, the victim testified that appellant threatened to kill her. As indicated above, this threat is obviously a threat to commit a crime of violence. Appellant has failed to show that giving the instruction appellant seeks would have significantly affected the verdict. Thus, even if the district court committed plain error, it was not prejudicial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.