This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
C4-02-1628
State of Minnesota,
Respondent,
vs.
Jon Leverne Gaustad,
Appellant.
Otter Tail County District Court
File No. K2012216
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
HUSPENI, Judge
In this appeal from his conviction of terroristic threats, fifth-degree assault, and interference with a 911 call, appellant argues that as a matter of law a charge of terroristic threats cannot be based on a threat to commit a crime of negligence and, therefore, his threat to drive a car into the ditch cannot support the conviction. Appellant also argues that the trial court’s findings were insufficient to sustain the conviction. Finally, appellant argues that the offense of interfering with a 911 call was part of the same behavioral incident as the fifth-degree assault and, therefore, he cannot be separately sentenced. Because we conclude that the trial court properly applied Minn. Stat. § 609.21 (2000) when it found appellant guilty of terroristic threats, and that the findings were sufficient to sustain the conviction, we affirm. We agree with appellant, however, that the interference with a 911 call and the assault were part of the same behavioral incident. Therefore, he cannot be sentenced on both and we vacate his sentence for interference with an emergency call.
Appellant Jon Leverne Gaustad and the victim began dating in October 2001. The victim testified that appellant became angry and depressed when he drank. The victim testified that after both had been drinking at a bar on the evening of December 8, she began to drive the two to her home. On the way, appellant allegedly said, “we might as well both be dead” and then grabbed the steering wheel, attempting to force the car into a ditch. The victim regained control of the vehicle, managing to avoid the ditch, stopped the vehicle, and asked appellant if he wanted to drive. He did and drove the rest of the way to the victim’s home. Once inside the home, appellant assaulted the victim by pushing her against the stove and hitting and kicking her repeatedly. The victim reported that she attempted to call the police, but appellant unplugged the phone. Some time later, appellant passed out and some time after that the victim left to go to her mother’s house. Once there, she called appellant and told him to get out of her house.
Appellant’s testimony of the events differed from that of the victim. He testified that nothing happened during the ride home from the bar and that he neither assaulted her, nor prevented her from calling for help. Instead, appellant claimed that the victim fell over the stove, and when he tried to help her up, she allegedly swore at him and accused him of beating her. Appellant claims that he then assisted the victim to the couch and offered to take her to the hospital, but she told him not to do anything.
Appellant was charged with making terroristic threats, fifth-degree assault, and interference with a 911 call. After trial to the court, he was convicted on all three charges. He was also sentenced on all three charges: 24 months for terroristic threats and concurrent sentences of one year for the fifth-degree assault and 90 days for interference with an emergency call. This appeal followed.
I.
Construction of a criminal statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). Minn. Stat. § 609.713, subd. 1 (2000), states:
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. As used in this subdivision, “crime of violence” has the meaning given “violent crime” in section 609.1095, subdivision 1, paragraph (d).
(Emphasis added.) The statutory language is clear that criminal vehicular homicide is a crime of violence as defined by Minn. Stat. § 609.1095 (2000). Minn. Stat. § 609.21, subd. 1 (2000), provides, in part:
A person is guilty of criminal vehicular homicide resulting in death and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the person causes the death of a human being not constituting murder or manslaughter as a result of operating a motor vehicle:
(1) in a grossly negligent manner;
(2) in a negligence manner while under the influence of:
(i) alcohol[.]
Both appellant and respondent rely on State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609 (1975). In Schweppe, the defendant was convicted under the terroristic-threats statute. Allegedly, he made threats toward the victim to a variety of people and asked some of them to see how the victim reacted when they mentioned the defendant’s name, saying the victim should be “real scared.” Id. at 397, 237 N.W.2d at 612. Interpretation of the statute was a case of first impression and the court “deem[ed] it appropriate to review separately what we regard as the essential elements of this offense as presented by this case.” Id. at 399, 237 N.W.2d at 613. The court set out the law as follows:
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 will act according to its tenor.’”
Id. at 399-400, 237 N.W.2d at 613 (citations and quotations omitted).
More than 20 years later, the Minnesota Supreme Court decided that a threat did not have to be verbal; rather, physical acts can constitute threats as well. Murphy, 545 N.W.2d at 909. In Murphy, the court specifically rejected the argument appellant makes here that Schweppe’s holding required threats be verbal, stating:
While [appellant] focuses on terms in Schweppe such as “declaration” or “utter,” the crucial phrase from that opinion is whether the “communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” Many physical acts considered in context communicate a terroristic threat.
Murphy, 545 N.W.2d at 915 (quotation omitted).
Whoever, with intent to commit a crime, does an act which is a substantial step toward, and more than preparation for, the commission of the crime is guilty of an attempt to commit that crime, and may be punished * * * .
Minn. Stat. § 609.17, subd. 1 (2000) (emphasis added). In contrast to the specific intent required in the attempt statute, the terroristic-threats statute requires only that the accused have either the “purpose to terrorize another” or “a reckless disregard of the risk of causing such terror.” Minn. Stat. § 609.713, subd. 1. The rationale for this is plain: the intent to commit the crime threatened is not a necessary element of the terroristic threats offense. It is the threat itself which is required to be proven. It is not impossible to threaten to commit a crime of violence (as that crime is defined by statute), even though that crime may be one involving negligence.
We next examine the sufficiency of the trial court’s findings. The court concluded that appellant’s actions and words put the victim in extreme fear for her safety, and stated:
So if he didn’t intent to cause extreme fear in her, he certainly acted in reckless disregard of the risk of causing that to her. I don’t have to decide which of these two; it’s one or the other. And here I’m satisfied that at least the reckless disregard of the risk of causing such terror in [the victim] has been proven beyond a reasonable doubt. I’m also confident that the State has proven that [appellant] made that threat with the specific intent to terrorize her.
What is needed to support a conviction under the statute is a crime of violence threatened either intentionally or with reckless disregard. Minn. Stat. § 609.713, subd. 1. Here, the trial court specifically found that appellant threatened the victim either with the specific intent to terrorize her or in reckless disregard of the risk of terrorizing her. Either way, the statutory requirements are met and the court’s findings are sufficient.
II.
The final issue that we must decide is whether the assault and the interference with an emergency call were part of the same behavioral incident. Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the particular case. State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994). The state has the burden of showing that multiple offenses were not part of a single behavioral incident. State v. Williams, 608 N.W.2d 837, 841-42 (Minn. 2000). A trial court’s finding on whether or not offenses are part of a single behavioral incident will not be reversed on appeal unless clearly erroneous. Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).
Sentencing a defendant for two offenses that arise from the same behavioral incident is prohibited by statute. Minn. Stat. § 609.035, subd. 1 (2000), provides:
[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses[.]
Thus, if a defendant commits multiple offenses against the same victim during a single behavioral incident, the defendant may be sentenced for only one of those offenses. State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995). Any multiple sentences, including concurrent sentences, are barred if the statute applies. State v. Boley, 299 N.W.2d 924, 925 (Minn. 1980); State v. Richardson, 633 N.W.2d 879, 888 (Minn. App. 2001).
Under State v. Mendoza, the failure to raise the issue of multiple sentencing in the trial court does not constitute a waiver of the claim. State v. Mendoza, 297 N.W.2d 286 (Minn. 1980). Thus, respondent’s argument that this issue is waived must be rejected.
Here, the facts were disputed. It is clear that the court credited the victim’s account of the events that night. The victim testified that the initial assault was over rather quickly and that afterwards she attempted to call her relatives and then the police. Appellant argues that by preventing her from calling the police he was avoiding apprehension and, thus, all these actions were part of the same incident.
The events resulting in appellant’s convictions are a bit murky (both the victim and appellant had been drinking). On cross-examination, the victim established the order of events as follows: (1) she and appellant walked in the door to her home; (2) he assaulted her; (3) she attempted to call her relatives and appellant hung up the phone; (4) she attempted to call police and appellant unplugged the phone from the wall; (5) she tried to leave the house through the front door, appellant grabbed her and tossed her back in; (6) she just sat there for awhile; (7) appellant went to the couch and passed out; and finally (8) she left a couple hours later.
We conclude that the order of events as recited by the victim establishes that all actions were part of a single behavioral incident. The victim was assaulted in the kitchen before she attempted to call her relatives and the police. As she tried to leave, she was thrown back into the house. It is reasonable to infer that appellant believed the victim would not try to leave again and, thus, that his criminal activity would not be revealed to others. We accept that appellant’s interference with an emergency call was made to avoid detection or apprehension. When a defendant commits criminal acts in order to avoid apprehension, they cannot be sentenced on both the crime committed and the crime committed to avoid apprehension. State v. Gibson, 478 N.W.2d 496 (Minn. 1991). Because the assault and the interference with a 911 call arose from the same behavioral incident, we vacate the sentence for interference with a 911 call.
Affirmed in part, vacated in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.