may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Arnold Walter Gattinger,
Filed March 17, 1998
Affirmed as modified
Pine County District Court
John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 South Sixth Street, Suite 8, Pine City, MN 55063 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, Suite 600, 2829 University Avenue, S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.
Appellant Arnold Gattinger was convicted of second- and fifth-degree assault, obstructing legal process, and terroristic threats, in violation of Minn. Stat. §§ 609.222, subd. 1; 609.224, subd. 1; 609.50, subd. 1(2); and 609.713, subd. 1 (1994). He was sentenced to concurrent terms of 36 months, 90 days, one year, and 32 months. Gattinger contends that police conducted an illegal search, that the evidence is insufficient to support his conviction for terroristic threats, and that the trial court erred by sentencing him on the obstructing legal process and terroristic threats convictions. We affirm as modified by vacating the sentences for obstructing legal process and terroristic threats.
Three officers struggled with Gattinger at the scene and again at the jail to get him into a holding cell. After being interrupted by an unrelated call, two of the officers returned to the scene of the struggle with Gattinger and recovered the knife, a set of binoculars, and a half-empty bottle of gin. Later Deputy Rosati also recovered the flashlight Gattinger had been carrying.
Gattinger filed a demand for a hearing on the admissibility of the seized evidence. But defense counsel waived any Rasmussen issues, and it was not until mid-trial that defense counsel (Gattinger's second attorney) argued that the evidence should be suppressed because police had searched the property, which Gattinger's mother owned, without a warrant. The trial court denied the motion to suppress. The jury found Gattinger guilty on all counts, and the trial court sentenced him to concurrent sentences of 36 months for the second-degree assault, 90 days for the fifth-degree assault, 1 year for obstructing legal process, and 32 months for the terroristic threats.
D E C I S I O N
Gattinger's first attorney expressly stated at the omnibus hearing that he waived any Rasmussen issue. His second attorney did not raise the issue at trial until after the prosecutor had already described the seized evidence in her opening statement. But even if Gattinger had not waived the issue, his argument has no merit.
Because Gattinger did not raise the alleged illegality of the search until mid-trial, there was little testimony directed to Fourth Amendment issues, but certain inferences can be drawn from the record. The state does not contest that Gattinger's mother owned the land on which police searched for and found the knife and other evidence, but the evidence at trial established that the entire chase occurred along a path through the woods, in an area of heavy vegetation some distance from the mobile home Gattinger's mother owned. The area of struggle itself, where the officers would have recovered the evidence, was down a steep ravine, at the bottom of which was standing water.
The Fourth Amendment does not recognize a reasonable expectation of privacy in the "open fields," i.e., any area beyond the curtilage of a home. See, e.g., State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). Ownership of the "open fields" on which a search occurs is irrelevant because the property rights protected by the common law of trespass have little or no relevance to Fourth Amendment protections. Oliver v. United States, 466 U.S. 170, 183-84, 104 S. Ct. 1735, 1744 (1984). There is no evidence to support Gattinger's assertion that the search occurred within the curtilage of his mother's home.
There is no authority to support Gattinger's argument that a present ability to carry out a terroristic threat is required for a conviction. Most terroristic threats, in fact, involve a threat of future harm. See, e.g., State v. Marchand, 410 N.W.2d 912, 915 (Minn. App. 1987) (affirming conviction for terroristic threat to run victim off the road where defendant did not have a car at the time and victim was not traveling on a road), review denied (Minn. Oct. 21, 1987). When he uttered the threat, Gattinger was forcefully and very effectively resisting Deputy Rosati's attempts to handcuff and subdue him. The deputy could very well have believed that Gattinger, although disarmed at that moment, was more than capable of carrying out the threat at a future time. Even if Gattinger's threat, which followed his refusal to stop, his flight through the woods, and his pulling a knife on the officer, was "transitory anger," there is no authority to support Gattinger's claim that "transitory anger" will not satisfy the elements of the crime of terroristic threats. Cf. State v. Fischer, 354 N.W.2d 29, 34 (Minn. App. 1984) (disagreeing with appellant's characterization of his actions as "transitory anger"), review denied (Minn. Dec. 20, 1984).
In determining whether multiple intentional offenses constitute a single behavioral act, courts consider the factors of time and place and whether the offenses are motivated by a single criminal objective. State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990). This is not a mechanical test but involves an examination of all the facts and circumstances. State v. Banks, 331 N.W.2d 491, 493 (Minn. 1983).
This court has affirmed separate sentences in a case involving assault on police officers and obstructing legal process, although terming it a "close question." Fischer, 354 N.W.2d at 35. This court noted:
The initial assault occurred against one officer upon appellant being told he was under arrest. Later, after he calmed down and had been released, he obstructed legal process in a vain attempt at avoiding apprehension. These offenses were thus separately motivated and separated in time sufficiently to allow multiple punishment for his actions.
Id. (emphasis added).
In this case, there were no significant intervals of time separating the assault (the approach with the knife), the initial obstruction of legal process (resisting arrest and handcuffing), and the terroristic threat. Moreover, this court has recently distinguished Fischer in a case where there was no "break in the time frame" between obstructing legal process and giving false information to police. State v. Jeter, 558 N.W.2d 505, 507 (Minn. App. 1997). We conclude that the virtually continuous sequence of actions in the woods and ravine when Gattinger assaulted the officer, obstructed legal process, and made a terroristic threat was a single behavioral incident. Accordingly, we modify the judgment by vacating the sentences for obstructing legal process and terroristic threats.
Affirmed as modified.