This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Kazan Cody Dietrich,




Filed July 12, 2005

Reversed and remanded

Robert H. Schumacher, Judge


Washington County District Court

File No. K4035751



Mike Hatch, Attorney General, Kimberly R. Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Douglas H. Johnson, Washington County Attorney, Government Center, 14949 62nd Street North, Post Office Box 6, Stillwater, MN 55082 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Kazan Cody Dietrich challenges his conviction of terroristic threats under Minn. Stat. § 609.713, subd. 1 (2002), arguing that there is insufficient evidence to sustain the conviction, he did not waive all his rights associated with an adversarial trial under Minn. R. Crim. P. 26.01, subd. 3, and he was denied effective assistance of counsel.  The state concedes that Dietrich is entitled to a new trial.  We reverse and remand.


            In late July 2003, Detective Karin LaTour was assigned to investigate whether Dietrich had sexually assaulted a young woman.  At the conclusion of her investigation, LaTour arrested Dietrich, and he was placed in the Washington County Jail.  Between July 24 and July 25, Dietrich made multiple phone calls from the county jail.  During one of the calls to a friend, Dietrich stated, "This f---ing bitch investigator, if I go to jail I'm going to f---ing put a bullet in her f---ing head."   

The state charged Dietrich with one count of aggravated first-degree witness tampering under Minn. Stat. § 609.498, subd. 1 (2002), and one count of terroristic threats under Minn. Stat. § 609.713, subd. 1.  Prior to commencing jury selection the following conversation took place:

Dietrich's counsel:    We're here for trial, jury trial today.  And I've talked this matter over with [the prosecutor] and my client, and what we would like to do is waive the jury trial and submit the factual issues and the case in total, I guess, to the Court on the basis of submitted police reports, and the state taped various conversations involved. 


Prosecutor:    That's a correct statement, Judge.


The Court [to Dietrich]:        Is that what you wish to do?


Dietrich:         Yes, your Honor.


The Court:      Now, we had some discussions in chambers on this and I've been pretty open and honest on my views on this thing.  I think it would be better if some other judge heard that.  I don't think it's appropriate for me based on the discussions we've had that I make this decision . . .


            Following this discussion, the judge recused himself and the case was submitted on the written record to the district court.  On March 16, 2004, the district court issued its order, finding Dietrich guilty of both tampering with a witness and making terroristic threats.  The district court noted that while both crimes usually involve threats made directly to a person, both statutes also allow for indirect threats and found that Dietrich

knew or should have known that his conversations were being monitored and taped given the warnings that were contained in the inmate handbooks and on signs posted near the telephones.  He therefore either intended that the sheriff's office would communicate the content of the tape-recorded statements to Detective LaTour or he acted in reckless disregard of that possibility.  


            The district court later dismissed the conviction of tampering with a witness, finding that "the totality of the circumstances warrant the conviction for the terroristic threats but not the extensive sentence that would have been imposed under [the tampering with a witness conviction]."  The district court imposed the presumptive sentence of a stayed commitment of 366 days.


The state concedes that Dietrich is entitled to a new trial because he did not waive his rights associated with an adversarial trial as required under Minn. R. Crim. P. 26.01, subd. 3.  See State v. Halseth, 653 N.W.2d 782, 785 (Minn. App. 2002) (holding failure to obtain waiver on record of rights listed under rule 26.01, subd. 3, before proceeding to court trial on stipulated facts entitles defendant to new trial). 

Because Dietrich is entitled to a new trial on this ground, we do not address his claim of ineffective assistance of counsel.  But the Double Jeopardy Clause prevents a defendant from being retried if there was insufficient evidence to sustain his conviction, and we therefore address this claim.  See State v. Harris, 533 N.W.2d 35, 36 n.1 (Minn. 1995) (noting "[i]f a defendant obtains a reversal because of the insufficiency of the evidence as a matter of law, then the double jeopardy clause clearly precludes further prosecution") (citing Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141 (1978); State v. Gurske, 395 N.W.2d 353 (Minn. 1986)).

In considering a sufficiency of the evidence challenge, appellate courts review the evidence in the light most favorable to the state and assume that the factfinder believed the state's witnesses and disbelieved any contradictory evidence.  State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002); see also Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (stating appellate courts review "criminal bench trials the same as jury trials when determining whether the evidence is sufficient to sustain convictions" (quotation omitted)).  Appellate review is "limited to ascertaining whether [the factfinder], giving due regard to the presumption of innocence and to the state’s burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom."  State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted). 

"A conviction based on circumstantial evidence merits stricter scrutiny.  The evidence is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt."   State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988)  The conviction may stand where the circumstances form "a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt."   Id. (quotation omitted). This stricter standard still recognizes that the factfinder is in the best position to evaluate the circumstantial evidence surrounding the crime.  Id. 

A person is guilty of terroristic threats if he "threatens, directly or indirectly, to commit any crime of violence with the purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror or inconvenience."  Minn. Stat. § 609.713, subd. 1  (2002).  "A threat is a declaration of an intention to injure another or his property by some unlawful act."  State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).  "Purpose" means "aim, objective, or intention"; "terrorize means to cause extreme fear by use of violence or threats." 400, 237 N.W.2d at 614.  "A person acts 'recklessly' when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."  State v. Zupetz, 322 N.W.2d 730, 733 (Minn. 1982) (quotation omitted).

It is uncontested that Dietrich said during a phone call from the jail, "This f---ing bitch investigator.  If I go to jail, I'm going to f---ing put a bullet in her f---ing head."  This statement clearly supports a finding that Dietrich made a declaration of his intention to commit a crime of violence against LaTour.  The only question is whether Dietrich made this statement with the intent to terrorize LaTour or recklessly disregarded a substantial risk that such a result would occur.   

The record contains the affidavit of an employee at the Washington County jail.  The affidavit states that all inmates are given a handbook that advises them that the sheriff's office reserves the right to monitor non-attorney phone calls placed from the jail.  The affidavit also stated that warning signs regarding the telephone monitoring policy of the sheriff's office are posted prominently in inmates' living areas.  These warnings, coupled with the violent nature of the threat, provide a chain of circumstantial evidence sufficient to sustain the district court's conclusion that Dietrich either intended to terrorize LaTour or recklessly disregarded the risk that his statement would terrorize her.  See Bias, 419 N.W.2d at 484.

 Reversed and remanded.