This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Brian Thomas Vikingstad,
Filed June 28, 2005
Affirmed in part and remanded
Hennepin County District Court
File No. 03058620
Mike Hatch, Attorney General, 1800
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
Appellant challenges his conviction of felony terroristic threats, arguing that the police did not have probable cause to arrest him for disorderly conduct when he became profane and agitated but did not utter “fighting words.” Appellant further argues that his statements, and his further resistance, were evidence acquired as a result of the arrest and should have been suppressed and that his threats to kill a neighbor were idle threats made with no purpose to terrorize the victim. Additionally, appellant contends that the case must be remanded because the district court failed to make written findings of fact as required by Minn. R. Crim. P. 26.01, subd. 2. Because the record demonstrates that the police had probable cause to arrest appellant for making terroristic threats and that the district court therefore did not err in denying appellant’s motion to suppress, we affirm in part. But because the district court failed to comply with the requirements of rule 26.01, we remand for specific written findings of the essential facts supporting appellant’s conviction.
In August 2003, officers responded to a call at the home of appellant’s neighbors, Jodi Allen and Bobby Rankin. Officer Mark Bohnsack testified at the Rasmussen hearing that when he and his partner, Jim Boyd, arrived, appellant Brian Thomas Vikingstad was standing in front of the house. When the officers pulled up, appellant ran to his house next door, yelling, “I didn’t do anything.” After Officer Boyd spoke with Allen, who claimed that appellant had threatened her, the officers knocked on appellant’s door. According to Officer Bohnsack, appellant “opened the door and invited [the officers] in.” Bohnsack stated that after the officers entered, they
began to try and speak with [appellant], asking . . . [to hear] his side of the story. We didn’t go in . . . with the intent of arresting him at that time. We want to hear both sides of the story before we make a decision. [Appellant] immediately became agitated towards us and shout[ed] profanities.
Officer Bohnsack felt that appellant was intoxicated, noting that he had “slurred speech,” “bloodshot, watery eyes,” and smelled of alcohol. At this point, the officers placed appellant under arrest.
officers placed appellant in their squad car and brought him to the
When interviewed the next morning by Sergeant David Mattson, appellant admitted to threatening the officers.
Q: Okay. Well, why did you threaten the police officers then? They put it in their report. They had no reason to lie.
A: I put, I, I threatened them because they were arresting me and I didn’t break any laws.
. . . .
Q: So what did you say to the officers exactly?
A: I’m like . . . you like taking innocent people to jail?
A: Yeah. I’m like . . . I don’t like being taken to jail. I haven’t broken any laws[,] and you’re taking me to jail.
. . . .
Q: Yeah. Did you tell them you were going to get a shotgun and take care of business?
A: No. I said I had a .12[-]gauge.
Q: Yeah. Why did you [. . .]
A: (Inaudible) know what a .12[-]gauge could do.
Q: Why did you mention that to them? Did you tell, you know [. . .]
A: For violating my mother f---ing rights [’]cause I didn’t break any mother f---ing laws at all[.]
. . . .
Q: Did you tell them that you know how to work a .12[-]gauge better than they did?
Q: And what was the purpose of that statement?
A: The (inaudible) for them being real f---ed up. Taking me to jail. I didn’t break any laws.
. . . .
Q: What was the purpose of making these statements to the officers? That’s what I’m asking you though.
. . . .
A: My intent was nothing. I just don’t like being arrested. . . . I didn’t break any laws, okay.
Appellant disputes Officer Bohnsack’s account of the incident. He stated at his Rasmussen hearing that when the officers knocked, he unlocked the door but did not give them permission to enter. According to appellant, the officers did not ask if they could come in, but rather “pushed [the door] open, walked right in, turned me around, put handcuffs on me and took my wallet and then took me into their car, put me in their car, didn’t ask me  a question, then they go traipsing around in my house.”
Appellant also stated that he only had “two small glasses” of wine and was not intoxicated. Appellant admitted that his speech may have been slurred, but indicated that this resulted from “[m]ental disorders, obsessive compulsive disorders,” for which he was taking medication.
There is also disagreement about the events leading up to Allen’s call to the police. Allen testified that she and Rankin had just returned from grocery shopping when appellant approached her car and began yelling for Rankin to get out of the car because “[appellant] was mad because [Rankin was] a backstabber for sending [appellant] to jail.” Allen then stated that she told Rankin to stay in the car because she did not know what would happen if he got out. She continued:
So I went back in my car, and then I told [appellant] to please get off the yard, get off the yard, I kept telling him to get off the yard and go away. I told [appellant], “[Rankin] doesn’t want to talk to you.” I said, “If you don’t leave, I’m going to call the police,” and he stayed there, so I called the police, and I told [appellant], “Please leave because the police are coming,” and then after I had said that the police were coming, [appellant] said if I call the police, heads were going to roll and he kept saying that over and over again, and I said, “The police are on their way, you need to leave.” And then [appellant] said if I called the police, he was going to kill me . . . .
Appellant subsequently left and Allen and Rankin went into the house. Allen stated that while Rankin remained inside, she went to the front of her house to “check [her] mail . . . and also to see if [appellant] was up there.” She testified that appellant was on the sidewalk in front of her house, yelling for her and Rankin to come out. According to Allen she called the police back and once again told appellant to leave, but
[appellant] just stayed there, right at the bottom of the steps, and in front of the house, pacing back and forth, and then . . . every time I said I was going to call the police, [appellant] would say, “Heads are going to roll,” and [that appellant] was going to kill me.[]
Allen stated that she then waited on the porch for the police to get there. Once they arrived, she spoke to the officers but “didn’t pay attention” to what appellant did after this point. Allen indicated that appellant did not make any threatening gestures toward her and that at no time did she see any weapons. According to Allen, she was nonetheless scared “because [she lived] on the first floor, and [she did not] want anybody in [her] bedroom when [she] w[o]ke up or anything.”
In contrast, appellant testified that he was sitting with his cat on his porch, saw Allen and Rankin arrive home, and said to the cat, “Look who it is. Let’s go talk to him.” According to appellant, he came to within 25 or 30 feet of the car and asked, “‘[Rankin], why did you tell the cops I broke your 40,’ because there’s no other way the cops could have found out.” Appellant stated that, at this point, Allen got out of the car and told appellant to get out of the yard. When appellant did not immediately leave, Allen called the police. Appellant then returned to his own yard and said, “Hey, [Rankin,] you better check your girl, because we are supposed to be cool, we are supposed to be friends and she is calling the cops on me for no reason.”
Appellant testified that he then went into his front yard, from where he could see Allen and Rankin walking through their house to the front door. Appellant said that he was thinking about Hogan’s Heroes and a “silly[-]sounding phrase” from the show that he had heard his father say: “Heads are going to roll.” Appellant stated:
My cat’s around and I’m like, “Hi, Rex,” I’m like, “They better not get me in trouble.” I’m like “If I get in trouble for this, heads are going to roll, heads are going to roll,” just a little joke. It was no – there was no intent behind it to harm anybody.
. . . .
By the way, I never went back into their yard, I never went to the front of their house, like they are saying, and I never said, “kill,” all I said is, “Heads are going to roll.” Only a lunatic would say, “I’m going to kill you.”
According to appellant, Rankin then came out and wanted to fight him. Appellant did not wish to fight Rankin and tried to avoid him by backing up. At this moment, the police arrived. Appellant then “said, ‘I didn’t do anything,’ . . . went into [his] house, [and] locked the door.” Appellant indicated that he remained in his home until the officers came to the door, entered, and arrested him.
At his Rasmussen hearing, appellant moved to suppress the tape of appellant’s interview with Sergeant Mattson on the ground that he had not made a knowing and voluntary waiver of his Miranda rights because he had not taken his medication. Appellant also moved to suppress the comment made to Officer Bohnsack about the .12-gauge shotgun because it was made in response to questioning without a Miranda warning and to suppress all statements made subsequent to his arrest as fruit of the poisonous tree because the officers did not have probable cause to make the arrest.
All of appellant’s suppression motions were denied. The district court noted that although there “most likely was probable cause to obtain an arrest warrant” when the officers knocked on appellant’s door, “it made more sense for them to try to obtain [appellant’s] version before making a decision whether to get an arrest warrant.” The court then concluded that
the police version [of events] is the correct version, they asked to enter and were given permission to enter, thus the motion to suppress for an illegal entry and all that follows from it, is denied as well as a motion to suppress for an illegal arrest because I’m finding [that] there was a disorderly conduct that took place once [the officers] were inside.
The district court further concluded that appellant’s comment about killing the officers with a shotgun was a “volunteered statement” and, thus, denied appellant’s motion to suppress it as a response to a question without a Miranda warning. With respect to the taped interview, the district court noted that there had been no medical testimony or testimony by appellant that “the lack of medication led to [appellant’s] inability to understand or to his judgment being impaired by anxiety or . . . that he couldn’t make a knowing, intelligent waiver,” and the district court found that it would be “speculation” to conclude that appellant did not understand his rights.
The day of the Rasmussen hearing, the state amended the complaint to include two additional counts of felony terroristic threats, based on appellant’s alleged comments about his .12-gauge shotgun. The district court struck the amended complaint due to prejudice to the appellant. After a bench trail on the original complaint, the district court found appellant guilty of one count of felony terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002). This appeal follows.
I. Motion to Suppress
challenges his felony-terroristic-threats conviction, arguing first that the
district court erred in denying his motion to suppress evidence acquired as a
result of his arrest because the officers lacked probable cause to arrest
him. In a challenge to a pretrial order
on a motion to suppress evidence, we “independently review the facts and
determine, as a matter of law, whether the district court erred in suppressing—or
not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (
Appellant argues that because the police did not have probable cause to arrest him, all evidence obtained pursuant to that arrest must be suppressed as fruit of the poisonous tree. Here, the parties do not dispute that the officers’ actions constituted a seizure—appellant was arrested. Therefore, we simply address the question of whether an adequate basis for that seizure was articulated.
The district court ruled that the arrest was lawful because “there was a disorderly conduct that took place once [the officers] were inside.” Appellant argues that appellant did not commit disorderly conduct inside his home because his comments to the officers did not rise to the level of “fighting words” and were thus protected by the First Amendment.
On appeal from a district court’s finding that
the police had probable cause to make an arrest, we “make an independent
review of the facts to determine the reasonableness of the police officer’s
actions.” State v. Olson, 436 N.W.2d 92, 94 (
The disorderly conduct statute provides, in relevant part:
Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
. . . .
(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
The test to determine “fighting words” is whether the utterance of [the] vulgar, offensive insulting words would tend to incite an immediate breach of the peace, are inherently likely to provoke violent reaction, or have an immediate tendency to provoke retaliatory violence or tumultuous conduct by those to whom such words are addressed. Whether words are “fighting words” depends on the circumstances surrounding their utterance.
State v. McCarthy, 659 N.W.2d 808, 811 (
As we have previously noted, “this statute should not be used to combat rudeness or for social engineering.” M.A.H., 572 N.W.2d at 757 (quotation omitted). Officer Bohnsack testified that when the officers entered appellant’s home, “[appellant] immediately became agitated towards [the officers] and shout[ed] profanities.” The record does not indicate what appellant actually said to the officers, and the state admits that “the record does not appear to support a finding of probable cause for disorderly conduct based upon speech alone.” Thus, the district court’s finding that there was probable cause to arrest appellant based on his alleged disorderly conduct was clearly erroneous.
But this does not end the analysis. As the supreme court has stated:
We apply an objective standard for determining the lawfulness of an arrest or a search by taking into account the totality of the circumstances to determine whether the police have probable cause to believe that a crime has been committed, and if the objective standard is met, we will not suppress evidence or invalidate an arrest even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.
State v. Perkins, 582 N.W.2d 876, 878 (
“Probable cause” is defined as “[a] reasonable
ground to suspect that a person has committed or is committing a crime.” Black’s
Law Dictionary 1219 (7th ed. 1999). Probable
cause to arrest exists when a person of ordinary care and prudence would have a
strong and honest suspicion that a crime has been committed, based on objective
facts. In re Welfare of G.M., 560 N.W.2d 687, 695 (
The supreme court has recognized the importance
of the right to be free from warrantless entries into one’s home. State
v. Othoudt, 482 N.W.2d 218, 224 (
We now turn to the actual arrest. At the Rasmussen hearing, Officer Bohnsack indicated that appellant’s arrest was based on appellant’s alleged threat to Allen, Allen’s complaint, appellant’s condition, and his reaction to the officers. The district court noted that when the police knocked on appellant’s door, there “most likely was probable cause to obtain an arrest warrant,” but that it made sense for the officers to attempt to get appellant’s side of the story before making an arrest.
Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, 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.
II. Sufficiency of Evidence
argues that the evidence was insufficient to support his conviction. This court applies the same standard of
review on this issue regardless of whether a case was tried to the court or to a
jury. State v. Totimeh, 433
N.W.2d 921, 924 (Minn. App. 1988), review denied (Minn. Feb. 22,
1989). When considering a challenge to
the sufficiency of the evidence, our 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 fact-finder
to reach the verdict that it did. State
v. Webb, 440 N.W.2d 426, 430 (
must assume that the fact-finder believed the state’s witnesses and disbelieved
any contrary evidence. State v.
McKenzie, 511 N.W.2d 14, 17 (
As we have noted,
The district court
found that appellant had told Allen “that he would kill her and heads would
rol[l], and he said this repeatedly, that those words constituted a threat to
commit a crime, namely, the crime of murder, and they were said with the intent
to terrorize  Allen.” Appellant
challenges this conclusion on several grounds.
First, he argues that there is no reliable evidence that he said he
would kill Allen. But we give great
deference to the district court’s findings of fact. The testimony of Allen, Rankin, and Officer Bohnsack
provide reasonable evidence from which the court could find that the statement
had been made. Accordingly, the district
court did not clearly err in so finding.
See Dukes, 621 N.W.2d at
251 (stating that a district court’s findings of fact will not be reversed
unless clearly erroneous); State
v. Danh, 516 N.W.2d 539, 544 (
Appellant next contends that his alleged statements did not rise to the level of a threat “because there was no reason to believe that [a]ppellant would act on” his statements. The supreme court has stated that
[a] threat 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 willact according to its tenor.
We now turn to the
issue of intent. Appellant argues that
his statements contained no intent to terrorize, but merely expressed
transitory anger. As we have previously
inherently subjective, but may be inferred from the “surrounding
circumstances.” Schweppe, 306
Here, Allen testified that appellant repeatedly said “heads are going to roll” and that she “couldn’t even count how many times” appellant said he was going to kill her. She also testified that appellant’s repeated threats made her afraid of what he would do and that she and Rankin eventually moved “because of [appellant].” This testimony provides circumstantial evidence from which the district court could reasonably infer an intent to terrorize. Consequently, the district court did not abuse its discretion in finding that appellant made the statements with the intent to terrorize Allen.
III. Failure to Make Written Findings
district court failed to make the requisite written findings of fact. But it did recite, on the record, the basis
for its guilty verdict. The state argues
that this is sufficient to permit appellate review and cites Nyberg v. R.N. Cardozo & Bro., Inc.,
In State v. Taylor, we addressed this
requirement and stated that “the [district] court’s oral remarks do not
substitute for the mandated written findings.”
427 N.W.2d 1, 5 (
Affirmed in part and remanded.
 Officer Boyd was unavailable to testify at the Rasmussen hearing due to illness.
 When asked about the nature of the threat to Allen, Officer Bohnsack responded, “I remember the threat of death, that’s all I remember.”
 At his Rasmussen hearing, appellant denied threatening the officers, stating that he “just discussed ballistics of a shotgun with [the officers], because they carry guns.” In his closing statement at trial, appellant stated that he “only mention[ed] the 12-gauge because [he] was educating the officers of its performance, helping them in their police work.”
 At trial, appellant indicated that he had consumed approximately 20 ounces of wine.
 Appellant had been arrested for disorderly conduct the day before. According to appellant, he and Rankin had been sitting on the porch drinking beer. Appellant became annoyed with Rankin because a 40-ounce bottle of beer, purchased for Rankin by appellant, had been left out for two hours and had become warm. Appellant then threw the bottle on his own walkway, breaking it. The police arrived shortly thereafter, but appellant did not know who called them.
 According to Rankin, he came out onto the porch, but went back inside after Allen told him to go back into the house and let the police “deal with it.”
 According to Allen, the mailbox is located on a locked porch.
 Rankin testified that appellant said that he was going to kill “somebody.”
 Appellant is challenging only the denial of the suppression motion based on probable cause.
 Once again, we note that the district court believed the officers’ account and, given our deference to the district court’s determination of credibility, the record does not suggest that this determination was clearly erroneous. Losh, 694 N.W.2d at 102.