This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-849

 

In the Matter of the Welfare of:

 

B.B.

 

Filed January 14, 2003

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. J6-02-52605

 

Leonardo Castro, Fourth District Chief Public Defender, Melissa A. Haley, Assistant Public Defender, 317 South Second Avenue, Suite 200, Minneapolis, MN 55401 (for appellant)

 

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

 

Amy J. Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant challenges his delinquency adjudication for violating the terroristic threats statute.  Because the evidence permitted the district court to find beyond a reasonable doubt that appellant committed the offense, we affirm the adjudication.

FACTS

 

A.B., a 14-year-old female high school student, accused two male students of rape.[1]  A few months later, three posters appeared in the school halls depicting a naked female figure in different postures about to be killed by a cannon and bearing the text, “The question is how would you kill [A.B.]?”[2]  The drawings were done in red pen; the text was in black.  Earlier that day, appellant B.B., 17, also a student at the high school, had borrowed a red pen from a teacher who had seen appellant and his friend K.H. working together on something at a classroom table.  Appellant and K.H. were both friends of the students whom A.B. had accused of rape.

Teachers found the posters and turned them in to the assistant principal.  When the assistant principal interviewed appellant, he told her that he and K.H. had found the posters and hung them up.  The assistant principal suspended appellant.  When the assistant principal retrieved appellant’s backpack, she noted that the backpack had references to A.B.’s first name inscribed on it after the words “Death to—” and “Kill—” and before the words “—should be shot.”

Appellant was also interviewed by two deputy sheriffs and a detective.  He told them that he had just been “goofing around,” but also said that A.B. “was messing with my best friends.”  He was charged with tampering with a witness (on the theory that he was trying to prevent A.B. from testifying against the accused students) and with terroristic threats.  Following trial, the district court found the witness tampering charge not proven but found the terroristic threats charge proven beyond a reasonable doubt.  Appellant was adjudicated delinquent, placed on probation, and sent to an out-of-home facility.  He appeals his adjudication, contending that the evidence was insufficient to show that he either threatened to commit a crime of violence or acted in reckless disregard of causing terror.

D E C I S I O N

Appellant was adjudicated delinquent for violation of Minn. Stat. § 609.713, subd. 1 (2000), which  provides that:

Whoever threatens, 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 * * * 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.

 

On appeal from a determination that each of the elements of a delinquency petition has been proved beyond a reasonable doubt, “an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).

1.         Did appellant threaten to commit a crime of violence?

            Killing is a crime of violence.  The posters of a naked figure about to be violently killed, accompanied by text implying that the issue is not whether, but how, a particular named individual should be killed, support the inference that those who made and displayed the posters intended to injure that individual.

            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.

 

State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (construing Minn. Stat. § 609.713, subd. 1) (citations omitted).  The context in which these posters were displayed was a secondary school already tense because two students had been accused of rape by a third student, who was the subject of the posters.  In this context, the district court could conclude that the posters, which asked how to kill the accuser, were a threat. 

Moreover,

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 will act according to its tenor.

 

Id. (quotation omitted).  The posters would have had a reasonable tendency to create apprehension that those who made and displayed them in the school would act to harm A.B. “according to [the] tenor” of the posters. 

Appellant argues that no one could have made a rational assumption that a naked A.B. would actually be shot out of a cannon, but that argument is fatuous: the posters created the implication that A.B. should and would be harmed and the posters reasonably tended to create apprehension that their promoters would harm her.  Appellant also argues that he made no explicit threat to harm A.B. because the text on the posters was a question, not a statement.  But that question, “[H]ow would you kill A.B.?” implies the statement that A.B. would be killed, which is an explicit threat.

Even if the posters had carried no text but had indicated that the female figure was A.B., they would have been a threat.

Many physical acts considered in context communicate a terroristic threat.  We may find our examples in the case law, such as drawing a finger across one’s throat or discharging a firearm over the telephone * * * .

 

* * * [L]imiting the reach of the statute to oral or written threats would lead to an absurd result.  It would allow one to terrorize another if the terrorist were clever enough to make threats without recourse to the spoken or written word.

 

State v. Murphy, 545 N.W.2d 909, 915-16 (Minn. 1996).  If threats can be conveyed without any language, the fact that the language on the posters was a question rather than a statement does not prevent the posters from being threats.

There was adequate evidence to support the district court finding that appellant threatened to commit a crime of violence within the meaning of Minn. Stat. § 609.713, subd. 1.

2.         Did appellant act in reckless disregard of causing terror?

Appellant relies on Schweppe to argue that the element of recklessness requires a subjective awareness that the conduct creates a risk and that the district court should have asked if appellant had “a subjective knowledge of the substantial risk that A.B. would be threatened, and terrorized, by the content of those posters.”  But appellant’s reliance on Schweppe is misplaced: Schweppe rejects his argument.

Defendant is logically correct in that a speaker cannot intentionally commit the crime of terrorizing another if he utters the threat in circumstances where he does not know, or have reason to know, that it will be communicated to the victim.  This argument is of no help to defendant in this case, however, because the undenied testimony of the prosecution witnesses established that defendant uttered his threats in the presence of, and by conversing with, friends and acquaintances of [the victim].  Such evidence implies, and clearly would support, a finding that defendant knew, or had reason to know, and thus intended that his threats to kill [the victim] would be communicated to him.  Section 609.713, subd. 1, * * * prohibits threats made “in a reckless disregard of the risk of causing such terror.”  The jury * * * may well have concluded that defendant at the very least recklessly risked the danger that his threats would be communicated and thereby would terrorize [the victim].

 

Schweppe, 306 Minn. at 400-01, 237 N.W.2d at 614.[3]  Contrary to appellant’s argument, the issue was not his subjective knowledge of the risk that A.B. would be terrorized but whether the threat was made in such a way as to support the inference that appellant knew or had reason to know that his threat would be communicated to her.  Three threatening posters were displayed to the entire student body of the school A.B. attended. Appellant, like the defendant in Schweppe, at the very least recklessly disregarded the danger that the threats would be communicated to A.B.  

The district court could reasonably have determined that appellant threatened a crime of violence against A.B. with at least a reckless disregard of causing terror.  We conclude that there is no basis to overturn his adjudication of delinquency.

Affirmed.