This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-705

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas Dwayne Brown,

Appellant.

 

 

Filed April 11, 2000

Affirmed as modified
Foley, Judge^*

 

Ramsey County District Court

File No. K2-98-2864

 

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Ste. 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)

 

 

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges his convictions on three counts of terroristic threats, arguing that the evidence was insufficient to prove that he made threatening comments to prison guards and that the statements were made in transitory anger.  Appellant also argues that the district court’s imposition of a 132-month sentence, under the career offender statute, grossly exaggerates the criminality of his conduct, which was closely related in time and place.  We affirm the convictions, but modify appellant’s sentence.

FACTS

            This case arises out of incidents that occurred while appellant, Thomas Dwayne Brown, was being detained at the Ramsey County Adult Detention Center in connection with another case.

            On July 17, 1998, Brown threatened Deputies Rebekah Caumaint, Joel Leonard, Marcie Wacker, Robert Sargent, and Troy Patterson, as well as Sergeant Joanne Springer, by telling them that they would be harmed or killed by members of the Vice Lords gang.  This incident was charged as count one.  The second count of terroristic threats arose out of an incident occurring on July 21, 1998, when Deputy Sargent denied Brown privileges.  Brown responded by telling the deputy that he would be killed by “his people,” referring to the Vice Lords gang, known for their killing of a police officer. 

            On July 22, 1998, Brown threatened to kill Deputy Yang when the deputy refused to give Brown reading material; this was charged as count three.  The fourth and final count was charged from an incident that occurred on August 29, when Brown threatened a nurse after he refused to respond to his request for medication.

            Brown waived a jury trial and was found guilty of three counts (counts one, two, and four) of terroristic threats. The district court sentenced him to consecutive terms of 60 months, 36 months, and 36 months, respectively, for a total aggregate sentence of 132 months.

D E C I S I O N

I.

            Brown challenges his terroristic threats convictions, arguing that the evidence was insufficient to support his convictions.  Specifically, he argues that the state failed to prove that he uttered the threats with the purpose of terrorizing others as required by Minn. Stat. § 609.713, subd. 1 (1998).  The statute provides that it is a felony for one to threaten “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.”  Id.  

            When reviewing the sufficiency of the evidence, we are limited to determining whether, under the facts in the record and any legitimate inferences to be drawn from them, the defendant could have reasonably been found guilty.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981).   We will not retry the facts, but instead view the evidence in the light most favorable to the verdict and assume the fact finder believed the state’s witnesses and disbelieved all evidence to the contrary.  Id.

            The statute requires that the state prove that Brown threatened his victims with the purpose of terrorizing them.  Here, purpose means “aim, objective, or intention” and terrorize means “to cause extreme fear by use of violence or threats.”   State v. Schweppe, 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975).  Whether a statement constitutes a threat is dependent on whether the “communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.”  Id. at 399, 237 N.W.2d at 613 (citation and internal quotations omitted).

            Brown contends that the state’s witnesses grossly exaggerated what occurred and that while the statements he made to the corrections officers at the detention center were adversarial, they were not uttered with the intent to terrorize.  He argues that his testimony concerning his lack of intent to terrorize is more believable than that of the state’s witnesses.  Brown argues that the testimony of the deputies that he said he knew what cars they drove and that he would orchestrate some sort of revenge on them was not credible because he could not have known their names or their cars.  But whether Brown’s threats were based on information known to him or information that he only pretended to know is irrelevant.  He needed only the intent to terrorize and the appearance of being able to act on his threats.  He need not have actually possessed the ability to follow through on his threats.

            Brown made numerous threats to the corrections officers and the jail nurse, and the state presented testimony by the recipients of the threats as to the effect those threats had on each of them.  A victim’s reaction is circumstantial evidence of intent.  Skyes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998), review denied (Minn. July 16, 1998).  Sergeant Springer testified that she took Brown’s threats seriously because she knew the Vice Lords were responsible for the killing of a police officer in the past.  Another deputy testified that she was scared when Brown threatened her, while another testified to being alarmed at Brown’s reference to gang membership and Brown’s warning for the deputy to watch his back.

            The context in which Brown made his threats provides additional circumstantial evidence of intent.  Brown specifically referenced his alleged Vice Lord’s gang membership on several occasions when he made his threats.  Whether Brown was, in fact, a member of the gang is irrelevant.  Here, utilization of threats of gang member status by an inmate toward law enforcement officials, and in particular of membership in a gang known for killing a police officer, could and did cause apprehension in the law enforcement officials who were on the receiving end of such threats. 

            Finally, Brown contends that the evidence was insufficient to sustain his convictions because his outbursts were expressions of mere transitory anger.  See State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (terroristic threat statute not aimed at verbal threats that express transitory anger without intent to terrorize), review denied (Minn. Feb. 21, 1990); but see State v. Fischer, 354 N.W.2d 29, 34 (Minn. App. 1984) (rejecting transitory anger argument “as there are other methods of blowing off steam besides discharging firearms while threatening to kill people”), review denied (Minn. Dec. 20, 1984).  Transitory anger is short-lived anger that is not intended to terrorize.  State v. Taylor, 264 N.W.2d 157, 160 (Minn. 1978).  Brown contends that his statements were merely the words of a frustrated and powerless man, not those of a gang member who could order retribution.  Brown alleges that his words were the simple equivalent of pounding on his door or flooding his cell.  Thus, he argues these were not the kinds of threats the statute was designed to punish.

            The evidence produced at trial does not support Brown’s transitory anger claim. Brown threatened several people over the course of several days.  His anger was not short-lived, and it manifested itself in specific threats of retribution and killing.  The recipients took these threats seriously.  Because we defer to the fact finder, and circumstantial evidence of intent is present in this case, we conclude that there was sufficient evidence for the district court to have concluded that Brown was not expressing transitory anger when he threatened the corrections officers and jail nurse, but rather intended to terrorize them.

II.

            Brown contends that the district court erred by imposing three consecutive sentences for an aggregate sentence of 132 months, arguing that the imposition of consecutive sentences in conjunction with the district court’s durational departure unduly exaggerates the criminality of his conduct.  We agree.

            The decision to impose a consecutive sentence is within a district court’s discretion. State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).  Additionally, the decision to depart from the sentencing guidelines rests within the district court’s sound discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            To assure fairness, an appellate court can compare Brown’s offense with those of other offenders.  State v. Williams, 337 N.W.2d 387, 390 (Minn. 1983).  Brown argues that his sentence should be compared to that reviewed in State v. Murphy, 545 N.W.2d 909 (Minn. 1996).  But the sentence imposed in Murphy was based on severe aggravating circumstances.  Id. at 916-17.  Here, Brown’s sentence is based on his status as a career offender. Instead, we find State v. Norris, 428 N.W.2d 61 (Minn. 1988) helpful, though not controlling.

            We observe that in Norris, the Minnesota Supreme Court modified the defendant’s sentence because, while technically permissible, it unfairly exaggerated the criminality of the defendant’s conduct.  Id. at 71.  Norris was convicted of first-degree murder and five counts of second-degree assault in connection with an armed robbery and shooting at a bar. Norris was sentenced to life imprisonment plus five consecutive terms of 60 months each. Id. at 70.  The supreme court modified this sentence holding that three of the five 60-month terms were to be served concurrently.   Id. at 72.

            The facts of this case are very different from those in Norris.  While we find Brown’s threats to the corrections officers to be nothing less than rude, crude, and foul, the persons to whom the threats were directed had authority over Brown at the time he made them and he, as an inmate, was under their control.  This clearly differs from the situation in Norris where the defendant pointed a gun at and threatened five unarmed bar patrons.  

            Under the career offender statute, the district court is authorized to depart durationally from the presumptive sentence by imposing a sentence up to the statutory maximum.  Minn. Stat. § 609.1095, subd. 4 (1998). The sentencing guidelines provide that “[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other.”   Minn. Sent. Guidelines II.F. The statutory maximum sentence for one count of terroristic threats is 60 months.  Minn. Stat. § 609.713, subd. 1 (1998).

            But the guidelines also require that each offense permissively sentenced consecutive to another be sentenced at a zero criminal history score or the mandatory minimum for the offense, whichever is greater.   Minn. Sent. Guidelines II.F.  Here, the presumptive sentence for terroristic threats with a criminal history score of zero is a stayed sentence of one year and one day.  

            Because we hold that three consecutive sentences unfairly exaggerates the criminality of defendant’s conduct and because we believe that on the facts of this case a fair reading of the guidelines disallows the durational departure imposed by the court on the second and fourth counts, we modify Brown’s sentence to one term of 60 months and two terms of one year and a day.  The one year and one day terms shall be served concurrent to each other and consecutive to the 60-month sentence.

            Affirmed as modified.