This opinion will be unpublished and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

A03-1575

 

State of Minnesota,
Respondent,

vs.

Lawrance Behr,
Appellant.

 

Filed September 21, 2004

Affirmed in part and remanded in part; motion denied

Peterson, Judge

 

Dakota County District Court

File No. K603547

 

 

Mike Hatch, Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

James C. Backstrom, Dakota County Attorney, Shirley A. Leko, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.


U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of and sentence for threatening to commit a crime of violence with purpose to terrorize another, appellant Lawrance Behr argues that (1) the district court’s findings are insufficient to support his conviction; (2) the sentence he received as a career offender is excessive, unreasonable, unfair, and disproportionate; and (3) he received ineffective assistance of counsel.  We affirm in part and remand in part and deny the state’s motion.

FACTS

            Jeffrey and Teresa Blydenburgh were at home when they heard a loud crash.  Teresa looked outside and saw that an SUV had hit Jeffrey’s truck, which was parked on the street in front of the Blydenburghs’ house.  Teresa and Jeffrey both went outside.

            The bumpers of the SUV and the truck were locked together.  The SUV’s driver, later identified as appellant Lawrance Behr, was repeatedly driving backward and forward, attempting to disengage his SUV from the truck.  The SUV’s tires were squealing and burning rubber, and smoke was coming from the SUV’s tires and hood.

            Teresa ran up to the SUV and began pounding on the passenger window.  Teresa testified that as she pounded on the window, appellant bent down in his seat and, with his right hand, pulled out a gun and pointed it at her and swore at her.  Teresa described appellant as having blood running down his face and his teeth clenched, appearing to be very angry, and still driving his SUV back and forth.  Teresa testified that when she saw the gun, she was only an arm’s length away from appellant.  At that time, Jeffrey was also banging on the SUV’s window.  He saw appellant reach under the seat and pull out a gun and swear at Teresa while pointing the gun at her.  Jeffrey described appellant as “totally wild eyed” with “both hands on the wheel, gritting his teeth” and driving back and forth trying to disengage the SUV from the truck.

            When Jeffrey saw the gun pointing at Teresa, he pulled her out of the way.  Teresa left the scene, fearing that she would be shot.  Appellant jumped out of the car, and Jeffrey chased him down the street.

Jeffrey did not attempt to apprehend appellant because he could not see whether appellant still had the gun.  Police apprehended appellant about one and a half hours later.  Police searched appellant’s car and surrounding areas but did not find a gun.

            Appellant was charged by complaint with committing the offense of threatening to commit a crime of violence with purpose to terrorize another in violation of Minn. Stat. § 609.713, subd. 1 (2002).  The complaint later was amended to add charges of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2002), and fourth-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002).

            The case was tried to the district court.  Appellant stipulated at trial that he was the driver of the SUV that hit Jeffrey Blydenburgh’s truck and that, at that time, his blood alcohol concentration was .10.  The district court found:

            3.         On February 16, 2003, on the roadway directly in front of the residence located at 365 West Butler Avenue, West Saint Paul, Dakota County, [appellant], without provocation or justification, threatened Teresa Blydenburgh by pointing what purported to be a semi-automatic handgun at her and verbally threatened Ms. Blydenburgh, both of which actions were done with the intent to terrorize or cause extreme fear in Ms Blydenburgh.

 

            4.         The State has failed to prove beyond a reasonable doubt that the purported firearm pointed by [appellant] at Ms. Blydenburgh was a “dangerous weapon” within the meaning of [Minn. Stat. § 609.222, subd. 1 (2002)].  No firearm was found by police officers during the subsequent investigation.

 

The district court found appellant guilty of terroristic threats and fourth-degree DWI and not guilty of second-degree assault.  The district court sentenced appellant on the terroristic-threats conviction as a career offender, under Minn. Stat. § 609.1095, subd. 4 (2002), to an executed term of 60 months in prison.  This direct appeal challenging the terroristic-threats conviction and sentence followed.

D E C I S I O N

I.

Appellant argues that the district court’s findings are insufficient to support his conviction of terroristic threats under Minn. Stat. § 609.713, subd. 1 (2002), which states:

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 . . . 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.  As used in this subdivision, “crime of violence” has the meaning given “violent crime” in section 609.1095, subdivision 1, paragraph (d).

 

The definition of “violent crime” includes murder, manslaughter, and assault.  Minn. Stat. § 609.1095, subd. 1(d) (2002).

Appellant first argues that the district court’s finding that appellant pointed “what purported to be a semi-automatic handgun” at the victim does not support his conviction.  Respondent State of Minnesota contends that appellant’s argument takes the district court’s language out of context and that the evidence was sufficient to prove that appellant pointed an actual handgun at the victim.  But, in addition to finding that appellant pointed “what purported to be a semi-automatic handgun,” the district court also found that the state “failed to prove beyond a reasonable doubt that the purported firearm pointed by [appellant] at Ms. Blydenburgh was a ‘dangerous weapon’ within the meaning of [Minn. Stat. § 609.222, subd. 1 (2002) (defining crime of assault with a dangerous weapon)].”

In a case tried to the court, the district court’s findings are given the same weight as a jury verdict and will not be set aside unless they are clearly erroneous.  State v. Bouwman, 354 N.W.2d 1, 4 (Minn. 1984); State v. Vail, 274 N.W.2d 127, 133 (Minn. 1979).  Thus, this court is bound by the district court’s findings.  Considering the district court’s findings as a whole, we conclude that the only reasonable interpretation is that the state proved only that appellant pointed a purported handgun at the victim.

Accordingly, the issue we must decide is whether appellant’s conduct of pointing a purported handgun supports the district court’s conclusion that appellant was guilty of committing terroristic threats in violation of Minn. Stat. § 609.713, subd. 1.  In deciding this issue, we view the evidence in the light most favorable to the district court’s decision.  See In re Welfare of D.K.K., 410 N.W.2d 76, 77 (Minn. App. 1987) (stating in reviewing sufficiency of evidence in case tried to court, appellate court views evidence in light most favorable to the decision and decides whether the court could conclude that the person committed the offense).

In State v. Murphy, the defendant engaged in a series of terroristic actions against persons in the criminal-justice system.  545 N.W.2d 909, 912 (Minn. 1996).  His conduct included leaving dead animals and parts of dead animals at his victims’ homes.  Id.  The supreme court rejected the defendant’s argument that although he may have intended to harass and scare his victims, he neither threatened to injure them nor in fact injured them, and, therefore, his conduct should constitute nothing more than criminal damage to property.  Id. at 916.  The court held that the defendant’s acts were threats to commit future acts of physical violence under Minn. Stat. § 609.713, subd. 1, explaining:

The terroristic threats statute mandates that the threats must be to commit a future crime of violence which would terrorize a victim.  It is the future act threatened, as well as the underlying act constituting the threat, that the statute is designed to deter and punish.  Based on this interpretation of the statute, [defendant’s] acts of terrorism clearly involved threats to commit future acts of physical violence.  To take just one example, leaving parts of dead animals on the property of victims does not induce the fear of future acts of littering or cruelty to animals; it conveys a threat to injure, kill, or commit some other future crime against the person.

 

Id.

            Minn. Stat. § 609.713, subd. 1, does not require that the defendant be capable of carrying out the threatened act.  As the supreme court explained in Murphy, it is not only the underlying act that is relevant.  Rather, the essence of the crime is the threat that is communicated to the victim.  Murphy, 544 N.W.2d at 916; State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).  Whether a 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.”  Schweppe, 306 Minn. At 399, 237 N.W.2d at 613 (quotation omitted); see also Murphy, 545 N.W.2d at 916 (stating threat can be communicated by physical act).

            Both Jeffrey and Teresa Blydenburgh testified that the object pointed by appellant appeared to be a real gun.  Jeffrey Blydenburgh testified that appellant appeared to be very angry and “wild eyed” and was swearing at Teresa as he pointed the object appearing to be a gun at her.  Under these circumstances, appellant’s conduct would have a reasonable tendency to create a fear that he would commit a crime of violence against Teresa.  Therefore, the state was not required to prove that the object pointed by appellant was an actual handgun.

II.

Appellant argues that the findings are insufficient because they do not specifically identify any “crime of violence” threatened by appellant.  In a case tried to the court, the court

shall make a general finding of guilty [or] not guilty . . . [and,] in felony and gross-misdemeanor cases, shall in addition specifically find the essential facts in writing on the record.  . . . If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.

 

Minn. R. Crim. P. 26.01, subd. 2.

            In State v. Totimeh, this court held that, although the district court did not specifically find that the defendant entered a residence with intent to commit criminal sexual conduct, as required to support a conviction of first-degree burglary, intent could be assumed to be included in the general finding under Minn. R. Crim. P. 26.01, subd. 2.  433 N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).  Compare State v. Dominguez, 663 N.W.2d 563, 566 (Minn. App. 2003) (stating appellant conceded that there might be sufficient evidence to support conviction but argued district court’s findings were insufficient to support conviction; applying Minn. R. Crim. P. 26.01, subd. 2, this court rejected appellant’s narrow focus on the adequacy of the district court’s findings and, instead, examined entire record to determine whether evidence was sufficient to support conviction); with State v. Scarver, 458 N.W.2d 167, 169 (Minn. App. 1990) (remanding for findings when issue was whether evidence regarding arresting officer’s ability to accurately observe what occurred on evening of arrest was properly suppressed; explaining that intent, when it is an element of the crime, can be assumed in the general finding, but an officer’s ability to observe that to which he testifies and the evidence deemed sufficient by the trial court for its finding of guilt are not amenable to the same assumptions in a general finding).

            A threat to commit a future crime of violence is an element of the offense of terroristic threats defined in Minn. Stat. § 609.713, subd. 1.  Murphy, 545 N.W.2d at 916. Under Minn. R. Crim. P. 26.01, subd. 2, and the cases applying that rule, it is permissible for this court to infer from the general finding of guilt a finding that appellant threatened to commit a “crime of violence.”  The district court’s findings are sufficient to support appellant’s conviction of committing terroristic threats in violation of Minn. Stat. § 609.713, subd. 1.

            Appellant argues in the alternative that if the district court’s findings are sufficient to support appellant’s conviction of committing terroristic threats in violation of Minn. Stat. § 609.713, subd. 1, the conviction must be reduced to a conviction under Minn. Stat. § 609.713, subd. 3 (2002), which, appellant contends, establishes a more specific terroristic-threats offense that carries a lesser penalty.

            The statute that appellant contends is more specific states:

            (a) Whoever displays, exhibits, brandishes, or otherwise employs a replica firearm or a BB gun in a threatening manner, may be sentenced to imprisonment for not more than one year and one day or to payment of a fine of not more than $3,000, or both, if, in doing so, the person either:

            (1) causes or attempts to cause terror in another person; or

            (2) acts in reckless disregard of the risk of causing terror in another person.

 

            (b) For purposes of this subdivision:

            (1) “BB gun” means a device that fires or ejects a shot measuring .18 of an inch or less in diameter; and

            (2) “replica firearm” means a device or object that is not defined as a dangerous weapon, and that is a facsimile or toy version of, and reasonably appears to be a pistol, revolver, shotgun, sawed-off shotgun, rifle, machine gun, rocket launcher, or any other firearm.  The term replica firearm includes, but is not limited to, devices or objects that are designed to fire only blanks.

 

Minn. Stat. § 609.713, subd. 3.

Citing State v. Kalvig, 296 Minn. 395, 209 N.W.2d 678 (Minn. 1973), and Minn. Stat. § 645.26, subd. 1 (2002), appellant argues that if he “were guilty of something based on his conduct, it is clear that he could only have been convicted under the more specific statute.”  But even if we assume that these authorities require that when conduct is an offense under both a statute that describes the conduct in general terms and a statute that describes the conduct in more specific terms, the more specific statute applies to the offense, we could not reduce appellant’s conviction under Minn. Stat. § 609.713, subd. 1, to a conviction under Minn. Stat. § 609.713, subd. 3.

As appellant argues, and as we have already stated, this court is bound by the district court’s findings.  Also, as we have already stated, the only reasonable interpretation of the district court’s findings as a whole is that the state proved only that appellant pointed a purported handgun at the victim.  Appellant’s argument rests on the premise that the district court’s finding that appellant pointed a purported handgun at the victim is the same as a finding that appellant pointed a BB gun or a replica firearm at the victim.  But these two findings are not the same.  The district court did not find that appellant pointed a BB gun or a replica firearm at the victim or that the object that appellant pointed at the victim was not an actual firearm; the district court only found that the state did not prove that the object was a dangerous weapon.  Without a finding that the object was a BB gun or a replica firearm, there is no basis for us to conclude that appellant committed an offense under Minn. Stat. § 609.713, subd. 3.

III.

            The district court imposed an upward durational sentencing departure under, Minn. Stat. § 609.1095, subd. 4 (2002), which states:

            Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

 

After the district court sentenced appellant, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In Blakely, the Court considered whether the State of Washington’s sentencing procedure deprived the petitioner of his “federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.”  Id. at 2536.  The petitioner in Blakely pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm.  Id. at 2534.  Under the Washington criminal code, second-degree kidnapping is a class-B felony that carries a maximum statutory sentence of ten years, but the Washington Sentencing Reform Act further limited the sentencing range to 49-53 months and permitted the district court to impose a sentence above that range only upon finding “substantial and compelling reasons justifying an exceptional sentence.”  Id. at 2535.  The district court imposed an “exceptional sentence” of 90 months, which was based on the court’s finding that the petitioner acted with “deliberate cruelty,” a statutorily enumerated ground for departure under the Washington Sentencing Reform Act.  Id.  The United States Supreme Court held that because the “exceptional sentence” the district court imposed was not based solely on facts reflected in a jury verdict or admitted by the petitioner, Washington State’s sentencing procedure did not comply with the Sixth Amendment to the United States Constitution and the petitioner’s sentence was invalid.  Id. at 2537-38.

Like the sentencing departure in Blakely, the district court’s determination that the present offense was committed as part of a pattern of criminal conduct involved factual findings by the district court.  See State v. Gorman, 546 N.W.2d 5, 8-9 (Minn. 1996) (construing term “pattern of criminal conduct” in career-offender statute).  Because the district court could not have considered whether it is permissible under Blakely to base the upward departure on these factual findings, we remand to permit the district court to reconsider appellant’s sentence in light of Blakely.[1]

IV.

            Appellant raised additional issues in a pro se supplemental brief.  Appellant argues that he received ineffective assistance of counsel.  To succeed on a claim of ineffective assistance of counsel, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  “There is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.”  Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).

            Appellant argues that his attorney was ineffective in failing to make opening and closing statements.  But, the record establishes that defense counsel made a closing argument.  The decision not to make an opening statement was a matter of trial strategy.    “[M]atters of trial strategy . . . will not be reviewed later for competence.” Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001).

            Appellant argues that his attorney should have more thoroughly questioned the officers about their failure to find a gun.  But the district court specifically found that the state failed to prove beyond a reasonable doubt that appellant possessed a dangerous weapon, and appellant does not explain why it is reasonably probable that the result of appellant’s trial would have been different if his attorney had more thoroughly questioned the officers.

            Appellant also cites as ineffective assistance his attorney’s advice that appellant not testify and his attorney’s failure to (1) object to the admission of excited utterances by witnesses and statements that appellant made in the emergency room; and (2) make other objections during trial.  These are matters of trial strategy and not subject to review.  Id.  Moreover, appellant makes no argument and cites no authority that supports his claim that he received ineffective assistance.  A claim that is not supported by argument or citation to legal authority is deemed waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).

            Appellant also argues that the Blydenburghs were unable to identify him in a photo line-up.  But appellant admitted that he was driving the SUV, and it was registered in his name.  Additionally, appellant argues that the district court erred in admitting evidence that a knife was found in his SUV.  A party claiming error in a trial court’s evidentiary ruling has the burden of establishing both the error and the resulting prejudice.  State v. Carter, 682 NW.2d 648, 652 (Minn. 2004).  Nothing in the record indicates that appellant was prejudiced by this evidence.

            Affirmed in part and remanded in part; motion denied.



[1] Appellant filed a letter with this court citing Blakely, and the state filed a motion, arguing that appellant should be required to raise Blakely in a postconviction proceeding.  The Minnesota Supreme Court has held that “if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule.”  O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004). “[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”  Id.  Because appellant’s case was pending on direct review when the Supreme Court released its opinion in Blakely, appellant is entitled to benefit from any applicable rule announced in Blakely.  Therefore, we deny the state’s motion.  We express no opinion whether any rule announced in Blakely applies to appellant’s sentence.