This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Harvey Leroy Jahnke,



Filed January 25, 2005


Lansing, Judge


Martin County District Court

File No. KX-03-5514



Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Terry Viesselman, Martin County Attorney, Suite 130, 923 North State Street, Fairmont, MN 56031 (for respondent)


John Stuart, State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414; and


Melissa Sheridan, Assistant Public Defender, Suite 320, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


            A jury found Harvey Jahnke guilty of terroristic threats.  In this appeal from conviction, Jahnke alleges prosecutorial misconduct and prejudicial error in the jury instructions.  Applying the plain-error doctrine to the prosecutor’s statements about the presumption of innocence and the district court’s jury instructions on the elements of the offense, we conclude that a new trial is not warranted, and we affirm.


The evidence supporting Harvey Jahnke’s conviction of terroristic threats centered on testimony by a bar-and-restaurant employee.  The employee knew Jahnke and also knew Diane Hinton, the mother of a child who had been sexually abused by Jahnke’s wife.  The state had prosecuted and imprisoned Jahnke’s wife for the sexual assault of Hinton’s child.  When Jahnke was at the bar and restaurant, he asked the employee whether she was still a friend of the Hintons.  She responded that she was, and Jahnke told her, “[W]ell if you ever see Diane or her [child], please tell them that I will f---ing kill them for what they did to my wife.”

            Based on these statements, the state charged Jahnke with two counts of terroristic threats.  At trial, during closing argument, the prosecutor stated that the defendant is presumed innocent but also said that this presumption does not mean the jury should “give the benefit of the doubt to the defendant.”  The prosecutor repeated that phrase twice during his argument.  He also directly addressed reasonable doubt.  He explained that reasonable doubt is “such doubt as . . . ordinary prudent men and women would act upon in their most important affairs. . . .  It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt. . . .  [I]t means doubt based upon reason and common sense.”  The defendant did not object to any portion of the prosecutor’s closing argument.

            After the closing arguments, the judge instructed the jury on the presumption of innocence, the state’s burden of proof, and the definition of proof beyond a reasonable doubt.  He further instructed the jury that “[i]f an attorney’s argument contains any statement of the law that differs from the law I give you, disregard the statement.”  In listing the elements of the offense, the judge stated that the defendant must have “threatened, directly or indirectly, to commit a crime of violence,” but did not define “crime of violence.”  Jahnke did not object to the jury instructions.

            The jury convicted Jahnke of both counts of terroristic threats, and the court subsequently sentenced him.  He now appeals his conviction.



            When a defendant fails to object to a prosecutor’s statement at trial, the defendant ordinarily forfeits his right to have the issue considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  To determine whether the right was forfeited, we apply the plain-error rule.  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).    Under this rule, we grant relief “only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.”  State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988). 

“Misstatements of the burden of proof are highly improper and would, if demonstrated, constitute prosecutorial misconduct.”  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000) (citing State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985)).  But we consider statements in closing arguments as a whole and do not focus on selective phrases or remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993); see also State v. Olek, 288 Minn. 235, 239-40, 179 N.W.2d 320, 324 (1970) (reasoning that one misstatement of burden of proof in jury instructions, when looking at whole of instructions, was not reversible error).

Jahnke did not object to the prosecutor’s closing argument.  Consequently, we conduct our analysis under the plain-error rule.  We note at the outset that the prosecutor’s phrase “the benefit of the doubt” was awkward and poorly chosen because the repetition of the word “doubt” in the phrase suggests a connection to “beyond a reasonable doubt.”  Notwithstanding this suggested connection, we conclude for three reasons that the prosecutor’s closing argument did not amount to inexcusable misconduct so serious and prejudicial that we should grant a new trial. 

First, we consider the overall context of the closing argument and note that the prosecutor explained, at some length, the meaning of reasonable doubt.  He properly stated the law on reasonable doubt and clarified any ambiguities or confusion that he may have inadvertently caused with his benefit-of-the-doubt comments. 

Second, the district court’s instruction about reasonable doubt was sufficient to cure any error.  The judge explained to the jury that the defendant is presumed innocent and discussed the requirement that the state prove its case beyond a reasonable doubt.  These proper instructions reinforced the correct statements of the prosecutor while downplaying any arguably misleading statements.  By telling the jury to disregard any conflicting statements of the law offered by the attorneys, the judge further clarified that only his explanation of reasonable doubt and the presumption of innocence should be considered. 

Third, the record includes no evidence to show that the prosecutor intended his statements to confuse or mislead the jury.  The absence of any deliberate misconduct weighs against a determination that the prosecutor’s conduct is so inexcusable that a new trial is necessary in the interest of justice.  For these reasons, we conclude that the prosecutor’s statements do not require a new trial.


            We review jury instructions in their entirety to determine whether they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  A defendant’s failure to object to instructions before the judge instructs the jury constitutes a waiver of the right to appeal.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  We nonetheless review the instructions if they amount to plain error affecting substantial rights or were misleading or confusing on fundamental points of law.  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  Error is prejudicial when there is a reasonable likelihood that the error would have had a significant effect on the jury’s verdict.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            A charge of terroristic threats requires that the defendant threatened, indirectly or directly, to commit a crime of violence with the purpose of terrorizing another or in reckless disregard of causing such terror.  Minn. Stat. § 609.713, subd. 1 (2002).  A district court should generally submit all elements of an offense to the jury.  State v. Wick, 331 N.W.2d 769, 772 (Minn. 1983).  While the instructions should explain the elements of the crime, “detailed definitions of the elements to the crime need not be given in jury instructions if the instructions do not mislead the jury or allow it to speculate over the meaning of the elements.” Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979) (footnote omitted).  Jahnke challenges the district court’s jury instructions on the first element.  He asserts the failure to define “crime of violence” requires this court to reverse the district court and allow a new trial. 

We reject Jahnke’s claim that the instruction was erroneous.  The district court instructed the jury on the elements of the crime and simply did not offer a detailed definition of “crime of violence.”  But the commonly understood definition of “crime of violence” was sufficient to convey the essentials of the element to the jury.  See id. (holding that failure to define “serious bodily harm” was not reversible error because instructions need not contain definitions and commonly understood definition sufficed). 

Furthermore, the instructions did not affect Jahnke’s substantial rights.  The statute provides that “crime of violence” is to have the same meaning as “violent crime” in section 609.1095.  Minn. Stat. § 609.713, subd. 1.  “Crime of violence” is therefore statutorily defined as including all the degrees of manslaughter and murder.  Minn. Stat. § 609.1095, subd. 1(d) (2002).  The threat to kill the Hintons necessarily constitutes either a threat to commit manslaughter or murder and qualifies as a “crime of violence.”  Thus, alternative jury instructions would not have benefited Jahnke or had any effect on the jury verdict, let alone a significant effect, because the jury could not rationally believe the threatened conduct failed to satisfy the element of the crime.  Therefore, the jury instructions did not result in any prejudice or affect the defendant’s substantial rights.