This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-233

 

In the Matter of the Welfare of:  D. C. W., Child.

 

Filed December 6, 2005

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File Nos. J303556009, J0-04-555393

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant D.C.W.)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant D.C.W. was adjudicated delinquent on one count of terroristic threats.  Appellant argues that the evidence is insufficient to establish that (1) he intended to terrorize anyone; and (2) his conduct caused or could have caused extreme fear.  We affirm.

D E C I S I O N

 

            On appeal from a ruling that each of the elements of a delinquency petition have been proved beyond a reasonable doubt, this 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)).  We must “view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence.”  Id.

            Here, the district court concluded that the state presented sufficient evidence to prove beyond a reasonable doubt that appellant made terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004).  Under the statute, a person is guilty of making terroristic threats if he “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 or inconvenience.”  Minn. Stat. § 609.713, subd. 1.  A statement is threatening if the “communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.”  State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (quotations omitted).  The statute, however, does not “authorize grave sanctions against the kind of verbal threat which expresses transitory anger which lacks the intent to terrorize.”  State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (quotation omitted) (alteration in original), review denied (Minn. Feb. 21, 1990).

            Here, it is undisputed that appellant told a Juvenile Detention Center (JDC) corrections guard, “I’m going to rape your wife and make you watch.”  Appellant made this statement after the JDC staff moved appellant to the Special Housing Unit (SHU) to search his body, including the waistband of his underwear, for a missing dinner fork.  The district court determined that this statement was a terroristic threat because appellant could have carried out the threat, and appellant made the statement with the intent to cause terror or in reckless disregard that the statement would cause terror.  Viewing the record in the light most favorable to the ruling, we conclude that a fact-finder could reasonably make that determination.

            The guard testified that although appellant and other JDC residents had threatened his physical harm many times before, the guard took the threat seriously because appellant “was in a different state of mind.”  The guard believed that appellant could act on his threat because the guard had “dealt with [appellant] in the past and . . . [knew] the tendencies that he ha[d] displayed.”  Additionally, the guard testified that he had experience with many residents dealing with anger, but during this incident, appellant’s statement was a “calculated response” rather than “a momentary burst of anger.”  Finally, the guard felt particularly threatened because he and his wife live in St. Paul and no other JDC resident had ever threatened his wife.

            This case is similar to Jones, where this court ruled that the evidence was sufficient to uphold an adult inmate’s convictions for making terroristic threats.  Id. at 63.  As here, the defendant in Jones threatened correctional facility personnel while he was in custody.  Id. at 57.  Over a two-month period, the defendant told three corrections workers that he would seriously harm or kill the worker or his family when he was released from the correctional facility.  Id.  The corrections personnel testified, just as the JDC guard did, that they felt very threatened, in part, because of the inmate’s manner and the tone of his voice.  Id. at 63.

Appellant attempts to distinguish the present case from Jones by arguing that his statement was merely an expression of “transitory anger,” rather than a manifestation of intent.  Appellant contends that unlike the defendant in Jones, he was provoked and only made the statement because he was angry from the search.  But the record supports the district court’s determination that appellant’s comment was not a “throw-away statement[] . . . made in a heated, impulsive manner.”  Rather, the statement was calculated and made at a time when appellant was no longer angry.  The guard testified that although appellant was upset while the JDC staff escorted him to the SHU, appellant calmed down once he was in the SHU.  The guard further testified that appellant complied with the search, and then made the statement in a calm and deliberate manner while looking the guard directly in the eye.  Based on this testimony, we conclude that it was reasonable for the court to find that the statement was intentional, rather than a mere expression of transitory anger.

            Appellant also argues that the guard did not feel “very seriously threatened” because unlike Jones, which involved four threats over a couple months, the present case only involves one threat.  But the terroristic threat statute does not require repeated threats over an extended period of time.  See Minn. Stat. § 609.713.  In addition, the number of threats did not control this court’s decision in Jones, and in that case, the defendant was charged separately for each threat.  See Jones, 451 N.W.2d at 57, 63.  Furthermore, the guard’s testimony contradicts appellant’s assertion that the guard did not feel threatened.  The guard testified that he was scared and “took [appellant’s] threat seriously” because he was familiar with appellant’s tendencies.  Assuming that the district court found the guard’s testimony credible, a fact-finder could reasonably determine that appellant’s statement was a threat and caused extreme fear.

            Viewing the record in the light most favorable to the district court’s decision, we affirm the district court’s conclusion that the state proved the elements of terroristic threats beyond a reasonable doubt.

            Affirmed.