This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
James John Trandel,
Filed September 28, 2004
St. Louis County District Court
File No. K5-02-300778
Eric L. Newmark, Michael K. Browne, Birrell & Newmark, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN 55403 (for appellant)
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
Considered and decided by Anderson, Presiding Judge; Peterson, Judge; and Shumaker, Judge.
G. BARRY ANDERSON, Judge
Based on the events of June 20, 2002, appellant was charged with three counts of terroristic threats (Minn. Stat. § 609.713, subd. 1 (2002)); obstructing legal process (Minn. Stat. § 609.50, subd. 1(2) (2002)); two counts of third-degree driving while impaired (Minn. Stat. § 169A.20, subd. 1(1) (2002)); third-degree test refusal (Minn. Stat. § 169A.20, subd. 2 (2002)); fourth-degree assault (Minn. Stat. § 609.2231, subd. 1 (2002)). A jury convicted appellant of all counts. This appeal follows. We affirm.
On June 20, 2002, Joseph and Julia Matzke went fishing with their son John; daughter-in-law, Debra; John and Debra’s three children; and a friend of the oldest child. Around 9:45 p.m., they began to return to the dock. Appellant James John Trandel was at the dock when the first of the two family boats returned. Appellant was using profanities as he attempted to load his boat onto his trailer. Joseph Matzke left his boat and asked appellant to control himself given the women and children present. Appellant stated, “Who in the hell . . . do you think you are,” and as he approached Joseph and his family he said, “Bob . . . give me my gun, I got a little problem back here.” Appellant referred to a gun in his truck approximately four or five times during the encounter. Joseph stated that appellant’s actions and language were “enough to make the hair stand up on the back of [his] neck.” And, because of appellant’s actions and statements, Joseph feared for his safety, as well as for the safety of his family.
John Matzke’s boat arrived at the dock shortly after Joseph’s, and he heard some of appellant’s threats directed at Joseph. Appellant then threatened John, again referring to the gun in his truck. John stated at trial, “I have my three-year-old son, my one-year-old daughter, my thirteen-year-old daughter . . . all in that same area. And he’s talking about getting a gun. And that terrified – you know, that scares me because I have my children and my wife with me.”
After hearing appellant yelling and swearing, John’s wife, Debra, came to the dock, and John told her appellant had threatened to get a gun from appellant’s truck. Debra then left the dock and expressed her concern to a park ranger. At the same time, Joseph went to retrieve his vehicle and trailer, and appellant continued to threaten John on the dock. John offered to help appellant get his boat on the trailer, but appellant responded with an obscenity. But appellant was still unable to retrieve his boat from the water, and his companion, later identified as Bob Davis, told him to unhook the boat and try again. Appellant then drove the boat around the harbor, narrowly avoiding a rock pier. Appellant was successful in his second attempt to load the boat onto the trailer.
At the same time, Debra spoke to federal Park Ranger Kevin Grossheim. Grossheim stated, “[Debra Matzke] appeared to be frantic, frightened, scared. It was very obvious that what she was telling me was very urgent to her and that she was afraid.” Grossheim called for backup and went to the dock.
Appellant and Davis were outside of appellant’s truck as Grossheim approached the dock. Appellant entered the driver’s side of the truck, and Davis entered the passenger’s side. Grossheim identified himself as a federal park ranger, asked appellant to shut off the engine, and told appellant to put the keys on the dash. But appellant did not comply with Grossheim’s request until the command was repeated several times. Appellant expressed an obscenity to Grossheim. Grossheim instructed appellant to place his hands on the steering wheel, again repeating his command several times before appellant complied.
Thereafter, federal Park Ranger Charles Remus and Minnesota State Conservation Officer Lloyd Steen arrived in response to Grossheim’s initial call for backup. Appellant continued to be uncooperative and use profanities but consented to a search of his vehicle. During the search, the peace officers recovered a black nylon handgun holster from under the driver’s seat.
Steen testified that following the search, appellant threatened to kill him, stating, “I distinctly remember him saying, looking me right in the eye, and saying ‘I’m going to kill you.’” Grossheim overheard this threat. Steen testified, “When somebody threatens to kill me, it definitely puts fear in me. I mean, I have no idea what’s going to transpire further down the line. If my family [is] going to be involved. Somebody says something like that, you definitely – there’s an alarm that goes through you.”
Appellant was then escorted to the park visitor center in order to measure his alcohol concentration. As appellant, Remus, and Grossheim were entering the visitor center, appellant kicked Remus, causing him to fall into a glass door. The rangers were then forced to carry appellant up a flight of stairs because he refused to climb them himself, and appellant continued to be uncooperative. After being carried up the stairs, appellant again threatened to kill Steen. Eventually, appellant was read the implied-consent advisory and asked if he wanted to speak to an attorney. Appellant then recited his attorney’s phone number from memory.
Following these events, appellant was charged with three counts of terroristic threats, obstructing legal process, two counts of third-degree driving while impaired, third-degree test refusal, and fourth-degree assault. A jury convicted appellant of all counts.
Appellant argues that the evidence introduced at trial was insufficient to prove that he possessed the requisite intent to commit terroristic threats. On 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 a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). “The 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. Dick, 638 N.W.2d 486, 492 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002); see also State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (“In reviewing the record, [appellate courts view] the evidence in the light most favorable to the jury’s verdict, assuming the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”); see also State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (“[R]esolution of conflicts and inconsistencies in testimony are the exclusive function of the jury.”), review denied (Minn. Feb. 21, 1990).
The terroristic-threats statute requires a threat to commit a violent crime made with the purpose to terrorize another or with the reckless disregard for the risk of causing terror. Minn. Stat. § 609.713, subd. 1 (2002). Sykes v. State, 578 N.W.2d 807 (Minn. App. 1998), review denied (Minn. July 16, 1998), interprets “purpose” to mean “aim, objective or intention and terrorize means to cause extreme fear by use of violence or threats.” Id. at 811 (quotation omitted). Whereas, “[i]ntent, of course, is a subjective state of mind usually established only by reasonable inference from surrounding circumstances.” State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975). A statement becomes a threat if it reasonably creates apprehension in another that the originator of the statement will act accordingly. Id. at 399, 237 N.W.2d at 613. Determining the intent of a statement is a factual issue for the jury to resolve. See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (“[A] person’s . . . conduct before and after an offense are relevant circumstances from which a person’s criminal intent may be inferred.”).
Here, appellant raised the issue of voluntary intoxication at trial to dispute his ability to form the requisite criminal intent for terroristic threats. While voluntary intoxication is not a defense to terroristic threats, the jury may take a defendant’s degree of intoxication into account when determining whether the defendant formed the intent to commit the crime. Minn. Stat. § 609.075 (2002). The defendant must show by a fair preponderance of the evidence he was too intoxicated to form intent. State v. Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980); see State v. Torres,632 N.W.2d 609, 617 (Minn. 2001) (holding a defendant’s consumption of alcohol does not create a presumption of intoxication, and mere intoxication does not mean a defendant is incapable of forming requisite intent); see also State v. Hale, 453 N.W.2d 704, 707 (Minn. 1990) (“We have never held that the mere fact that the defendant was intoxicated means that he was incapable of forming the requisite intent. Indeed, in numerous cases we have affirmed convictions for crimes committed by defendants while their blood alcohol levels were very high.”). This court will not reverse if the record contains evidence that supports the jury’s conclusion on the issue of intoxication, even if some contradictory evidence exists. Wahlberg, 296 N.W.2d at 416.
Here, the defense and prosecution presented evidence at trial that appellant consumed alcohol before the confrontation at the dock, thereby providing the basis for a voluntary-intoxication claim. After receiving a proper voluntary-intoxication instruction, the jury concluded that appellant was able to form the requisite intent for terroristic threats, despite his degree of intoxication.
There is sufficient evidence in the record to support the jury’s conclusion that appellant was able to form the requisite intent: (1) at trial, Joseph stated he did not believe appellant was slurring his words, nor was he “fall down drunk”; (2) Debra stated at trial that appellant did not appear to be unsteady on his feet when he was walking behind his boat; (3) appellant was able to perform a quick evasive action to avoid hitting a rock pier while he was operating his boat; (4) this action was performed in the dark, around 10:00 p.m., and appellant did not have his lights on; (5) appellant got into his truck and attempted to leave the dock when he saw Grossheim approaching; (6) appellant recognized Remus and Steen, calling them by name; (7) appellant recited his attorney’s phone number from memory; (8) appellant expressed his desire to go home, and he pointed in the actual direction of his home when he made these statements; (9) after requesting counsel, appellant made the decision to decline a Breathalyzer test; (10) appellant coherently argued with and asked questions of the law-enforcement officers present at the scene; and (11) Steen, who has known appellant for approximately 21 years, stated that while appellant was intoxicated, “He definitely knew what was going on.”
Appellant’s statements constituted a threat to commit a violent crime made with the purpose to terrorize another or with the reckless disregard for the risk of causing terror, and appellant is unable to show by a fair preponderance of the evidence that he was too intoxicated to form the required intent. Therefore, viewing the evidence in the light most favorable to the conviction, a reasonable jury could conclude, and did conclude, appellant was able to form the criminal intent needed to satisfy Minn. Stat. § 609.713, subd. 1 (2002).
II. Unfairly Prejudicial Evidence
A. Standard of Review
It is within the district court’s discretion to admit evidence, and appellate courts will not overturn such rulings absent an abuse of discretion. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). When reviewing evidentiary rulings, “our duty is to look to the record as a whole to determine whether, in light of the evidence therein, the district court acted ‘arbitrarily, capriciously, or contrary to legal usage.’” State v. Profit, 591 N.W.2d 451, 464 n.3 (Minn. 1999) (quoting Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997)). Thus, “[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” Uselman v. Uselman,464 N.W.2d 130, 138 (Minn. 1990). But this court will reverse a district court’s evidentiary ruling only if the district court clearly abused its discretion. State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).
Appellant claims that the district court’s admission of a gun holster found in appellant’s truck was unfairly prejudicial. Minn. R. Evid. 403 allows for the exclusion of otherwise relevant evidence if the probative value of the evidence is outweighed by the potential of unfair prejudice to the defendant. Appellant argues that the district court misapplied rule 403 in that it only addressed the first prong of the test – the district court found the holster to be probative. Minn. R. Evid. 403. Following a determination that the evidence is probative, the district court must then continue with the analysis under rule 403 and determine if the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. Id.
Here, appellant contends that the district court changed from a rule 403 balancing test to one of “inapplicable fairness” after determining the probative nature of the evidence. Appellant bases his argument on a portion of the district court’s evidentiary ruling:
I’m leaning towards giving the defendant the full instruction on all three of those terroristic threat counts. But if the defendant’s going to have that instruction, then certainly the state should be entitled to present any evidence that indicates that the defendant had a state of mind that was – that he was not so intoxicated and that he went through some sort of reasoning process.
While this statement appears to support appellant’s claim, it is not a complete recitation of the district court’s analysis. Immediately preceding this statement, the district court stated, “I think that there is probative value through the inference that the holster leads to the gun. It’s prejudicial. Whether it’s unfair prejudice or not, the [c]ourt has to allow both sides a chance to present such relevant evidence as bear on the issues.” The district court also noted earlier in the proceedings, “Certainly, after the fact finding a holster, if that comes into evidence, there is going to be a prejudicial effect. It’s evidence favorable to the state and unfavorable to the defendant. Whether that’s outweighed by the probative value depends on what the probative value is.”
Furthermore, the district court addressed this issue in a pretrial conference. At that time, the district court discussed with counsel its concerns regarding the holster. Specifically, the district court stated:
The main concern the [c]ourt has is the timing of [the introduction of the evidence]. In the absence of foundational evidence that the holster was known to the victims or that the holster was somehow involved in the commission of the crime, alleged commission of the crime, by – at the time the threats were made being somehow in the perception of the victims is what’s troublesome to the [c]ourt.”
But the state did not introduce the holster in order to show the terror created in the victims. Instead, as the district court recognized, the evidence related to appellant’s intent, as well as appellant’s ability to form such intent while in a state of voluntary intoxication. Therefore, appellant’s contention that the district court did not address the remainder of rule 403 is only partially correct. The district court did not specifically state the probative value of the evidence outweighed the danger of unfair prejudice, but it is clear from the record that the district court weighed the evidence before making a ruling on the admissibility of the holster.
Moreover, the district court recognized the connection between appellant’s voluntary-intoxication claim and the intent needed for a terroristic-threats charge. Specifically, the district court stated, “[H]ere I believe that the fact of the holster on this present record is probative of the defendant’s state of mind and it relates to whether or not he was so intoxicated that he could not have the specific intent or reckless disregard.” Appellant’s voluntary-intoxication claim heightens the scrutiny with which the jury must analyze appellant’s intent. Minn. Stat. § 609.075 (2002). The jury must determine not only if the appellant formed the requisite intent, but also whether appellant was able to form such intent in light of his condition. Id.; Wahlberg, 296 N.W.2d at 418.
The jury in this case found that appellant was able to form such intent. Respondent argues that this finding is consistent with State v. Love, 301 Minn. 484, 221 N.W.2d 131 (1974). In Love, the supreme court held:
The rule in Minnesota is that a weapon is admissible in a criminal case if it has some relevance to an issue in the case but not if the only purpose of its admission is to create suspicion in the minds of the jurors by showing that because the defendant owns a gun he is the type of person likely to commit crimes.
Id. at 484, 221 N.W.2d at 131 (citing State v. Jackson, 275 Minn. 462, 469, 147 N.W.2d 689, 693-94 (1967) (holding that evidence of a gun found in a car behind defendant’s residence was relevant because it led to a search of defendant’s residence)); State v. Grunau, 273 Minn. 315, 332-23, 141 N.W.2d 815, 821-22 (1966) (allowing circumstantial evidence found outside the presence of the defendant to be admitted to prove defendant’s connection to the crime, but only after proper foundation was laid). Here, the holster is relevant to show appellant was not so intoxicated as to be incapable of forming the intent necessary for terroristic threats. Therefore, it is not necessary for the victims to be aware of the holster, only that appellant was aware enough to connect his threats to the holster in his truck, thereby forming the criminal intent required for terroristic threats. The district court did not err in admitting the holster because the probative value outweighed the danger of prejudice to the defendant.
C. Child’s Statement
Appellant also argues he was unfairly prejudiced when the district court permitted John Matzke to testify about the comments his three-year-old son made on the date of the offense. Appellant moved to prevent the jury from hearing this testimony, arguing that such testimony had no probative value and that the danger of unfair prejudice outweighed any possible probative value. Appellant argues in his brief, “The prosecution’s use of this statement had the pure intent in [sic] inflaming the jury, and was improper.” Further, appellant points to the lack of a cautionary instruction to the jury regarding the child’s ability to comprehend appellant’s state of intoxication.
In support of appellant’s claim that the district court should have given a cautionary instruction, appellant cites State v. Frisinger, 484 N.W.2d 27 (Minn. 1992), and State v. Bloom, 516 N.W.2d 159 (Minn. 1994). But the supreme court held in Frisinger that “the failure of the trial court to give [cautionary] instructions in the absence of a request is not reversible error.” Frisinger, 484 N.W.2d at 31 (citing State v. Forsman, 260 N.W.2d 160 (Minn. 1977), in that a court should give a sua sponte cautionary instruction on evidence of other crimes, but failure to do so will not result in reversible error); see Bloom, 516 N.W.2d at 169 (inferring reversal would be appropriate if a district court failed to give a cautionary instruction regarding quantitative or qualitative DNA evidence that was “presented in a misleading or improper way”).
Given the overwhelming evidence favoring conviction, it is highly unlikely the brief statement from John regarding his child’s reaction unfairly prejudiced the jury. This is particularly true in light of the fact the statement was referred to only twice at trial. The district court may have erred in admitting the evidence of the child’s statement, but any such error is harmless in light of the overwhelming evidence favoring conviction.
 Rule 403 states, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Minn. R. Evid. 403 (emphasis added).
 The district court stated:
The fact of a holster being in the truck creates an inference that the defendant had a gun in the truck and that he had enough thought that he connected the gun to the truck. It doesn’t have to mean that there was actually a gun in the truck at that time, but that his thought process is relevant of a specific intent that he is bringing up the fact of a gun for the purpose of having the effect of terrorizing the victims. Therefore, it’s relevant.
 See also State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985) (citing Love for the proposition that “[a] weapon is admissible . . . if it has some relevance to the issues in the case, but is not admissible if its only purpose is to create suspicion in the minds of the jurors that because a defendant owns a gun he is likely to commit crimes.”); State v. Johnson, 324 N.W.2d 199, 201 (Minn. 1982) (upholding district court’s admission of evidence as not unfairly prejudicial to the defendant when it connected the defendant to the crime and showed consciousness of guilt); State v. Webber, 292 N.W.2d 5, 9 (Minn. 1980) (holding the admission of numerous guns not connected to the case was permissible because “the evidence connects the defendant to the crime” and did not “create suspicion” in the trier of fact).