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affirming conviction of making terroristic threat because defendant's words and hand gesture “had a reasonable tendency to cause fear of a future act of violence”; dissent would reverse because meaning of words and gesture, both separately and in combination, was ambiguous and speculative
Summary of this case from Avendano v. HolderOpinion
No. C3-98-1744.
Filed July 13, 1999.
Appeal from the District Court, Dakota County, File No. K3972858.
Mike Hatch, Attorney General, (for respondent)
James C. Backstrom, Dakota County Attorney, Peter J.Orput, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This appeal is from a judgment of conviction for terroristic threats. See Minn. Stat. § 609.713, subd. 1 (1996) (threatening crime of violence with purpose of terrorizing another). Because we conclude that the trial court did not abuse its discretion in admitting expert testimony, and because the evidence is sufficient to support the conviction, we affirm.
FACTS
Appellant Gustry Sailee was charged with one count of terroristic threats for making a statement to Officer Eric Gieseke as Gieseke waited outside a courtroom and for later making a "gang sign" in the parking lot as Gieseke got into his car.
Officer Gieseke testified that he was in the courthouse, dressed in civilian clothes, waiting to testify in a criminal trial when Sailee approached him and asked who he was. Gieseke responded by asking Sailee who he was, and Sailee walked away. Sailee approached him a second time, this time asking Gieseke to confirm that he was a police officer and telling Gieseke he was "going to be hung after this. Are you ready?" Officer Gieseke asked Sailee what he meant by that, and Sailee turned away.
Later, when Officer Gieseke walked out to the parking lot, he saw Sailee standing about 40 feet from Gieseke's vehicle. Sailee made a gesture toward him with his left hand held near his forehead. Officer Gieseke testified that he did not know the specific meaning of this hand gesture but that it appeared to be threatening.
At trial, Sergeant James Rugle, a member of the police gang strike force, explained that Sailee's hand gesture to Officer Gieseke was the "pitchfork up" sign made by Gangster Disciples. He testified that, in the context of a threat, the "pitchfork up" sign was meant to show that the threat was serious. Rugle conceded that Gangster Disciples would probably "sign" with their right hand, rather than the left hand, which Sailee had used.
DECISION
I.
Sailee argues that the trial court abused its discretion in admitting Sergeant Rugle's expert testimony. This court will not reverse a trial court's evidentiary ruling absent a clear abuse of discretion. State v. Kelly , 435 N.W.2d 807, 813 (Minn. 1989).
Sailee did not object to the admission of Sergeant Rugle's expert testimony on the meaning of the hand gesture. Therefore, he must show that its admission was plain error affecting substantial rights or constituting a fundamental error of law. State v. Miller , 573 N.W.2d 661, 675 (Minn. 1998).
Sailee challenges Sergeant Rugle's qualifications as an expert, the weight and reliability of his testimony, and the prejudicial connotations of his testimony, which connected Sailee to the Gangster Disciples. But Sailee cites no authority even suggesting that admission of expert testimony about gang signals relevant to an element of the offense is plain error.
All available authority points the other way. An annotation on the admissibility of expert testimony decoding the jargon, or code words, of drug dealers cites many federal cases allowing such evidence and no case that has ruled it inadmissible. Ralph V. Seep, Annotation, Admissibility of Expert Evidence Concerning Meaning of Narcotics Code Language in Federal Prosecution for Narcotics Dealing — Modern Cases , 104 A.L.R. Fed. 230, 233-34 (1991). Courts in other jurisdictions allow expert testimony on the meaning of gang signs, graffiti, or insignia. See, e.g., State v. Brewer, 536 N.W.2d 406, 412 (Wis.Ct.App. 1995) (holding gang graffiti evidence assisted jury in evaluating whether defendant's home was base of drug operation); State v. Hayes , 532 N.W.2d 472, 476 (Iowa Ct. App. 1995) (allowing admission of police officer's testimony concerning gang mannerisms and gang signs drawn by defendant). Sailee's challenges to Sergeant Rugle's qualifications as an expert and to the weight and reliability of his testimony fall far short of showing plain error.
II.
Sailee argues that the evidence is insufficient to support the conviction. In reviewing a challenge to the sufficiency of the evidence, this court must determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the jury to reach the verdict it did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
Sailee argues that both the verbal statement inside the courthouse and the hand gesture in the parking lot were too ambiguous to support a conviction for terroristic threats. The jury, however, could have reasonably concluded that each of these incidents reinforced the other, removing whatever ambiguity there was in Sailee's "gang sign" or his statement that Officer Gieseke was "going to hang."
The terroristic threats statute is not limited to verbal threats. State v. Murphy , 545 N.W.2d 909, 916 (Minn. 1996). Some nonverbal threats can be understood only in the context in which they are communicated. See id. at 915 (noting that many physical acts communicate threat in context performed). There is sufficient evidence that Sailee's words and his hand gesture, considered together and in context, had a reasonable tendency to cause fear of a future act of violence. See State v. Schweppe , 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (discussing meaning of statutory term "threat").
Affirmed.
I respectfully dissent. I conclude that the ambiguous statement made by appellant, Gustry Sailee, along with his "gang sign," although rude and childish in nature, does not meet the requisite elements of a felony terroristic threat. See Minn. Stat. § 609.713, subd. 1 (1998) (defining terroristic threats); see also State v. Schweppe , 306 Minn. 395, 399-401, 237 N.W.2d 609, 613-14 (1975) (listing necessary elements of statute and definition of each element).
Under Minnesota law, a person makes a terroristic threat when he or she
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.
Minn. Stat. § 609.713, subd. 1 (1998).
Sailee's remark to Officer Gieseke that the "cops will hang on this" or "you're hung" carries several interpretations; the record and testimony of the officer acknowledge this. The comment could be interpreted to mean that the case where Officer Gieseke and Sailee both testified would result in an acquittal for the defendant, meaning that the police would "go down" on the case. It could mean that witnesses who lie in the case "will get theirs." It could mean nothing more than Sailee was being a smart aleck. It could have any of several meanings depending on colloquialisms or street lingo. Simply put, the comment made to Officer Gieseke has no clear meaning attached to it. Most importantly, Officer Gieseke testified at Sailee's trial that he was unclear about what Sailee intended by the comment. As a matter of law, the testimony does not support the constitutional requirement that each essential element of a crime be proved by proof beyond a reasonable doubt.
The gang sign flashed to Officer Gieseke by Sailee carries an even higher degree of uncertainty. The state submitted "expert testimony" at trial regarding the meaning of the gang sign. The expert witness identified the hand gesture in the parking lot as the "pitchfork sign." The expert had to concede that the sign could have several different meanings. For example, the pitchfork sign can be used as a means of identifying members of the Gangster Disciples. It can be used as a greeting among members of that gang. It can be used by a Gangster Disciple to a member of another gang to signify "any number of things." The expert witness hypothesized that the pitchfork sign made by Sailee meant that the earlier threat in the courthouse was to be taken seriously by Officer Gieseke. I can only note, as the majority concedes, that the "expert" had to concede he did not really know "one hand from the other." His interpretation of the gang sign is arbitrary, speculative, and not founded on any specific knowledge that the witness intended the pitchfork sign to mean that a prior threat was to be taken seriously by the receiving party. Further, what constitutes a "gang" and what are gang signs can change from region of the country to region of the country, from state to state, from gang to gang, from divisions within each gang to other divisions within the same gang. The record is devoid of testimony that this gang sign, with certainty, always means one thing and cannot mean another. A close parallel is the extended middle finger of an angry motorist as he passes you and is angry because you are only doing 50 miles per hour on a highway where the legal minimum is 40 miles per hour and the maximum is 70 miles per hour. He may look angry as he makes the gesture, but it is difficult to make a felony terroristic threat out of that gesture; rudeness, yes, and a feeling that you would like to kick him square in the tailbone, yes, but I do not see that gesture rise to the level of a felony terroristic threat when the only corroborating evidence is a prior ambiguous statement about which the investigating officer testified that he was not sure what it meant.
The state concedes that the verbal comment and the hand signal must be combined in order for it to make out a terroristic threat case. The state agrees that one without the other is insufficient evidence. I can only note that when two separate ambiguous statements, one verbal and one physical, are combined, the end result still remains ambiguous. Thus, without solid record evidence supporting the essential elements of the criminal charge, the conviction for terroristic threats should be reversed.
In Schweppe the supreme court recognized the broadness of Minn. Stat. § 609.713, subd. 1, and the potential for innocuous threats to be readily construed as terroristic threats. Schweppe , 405 Minn. at 405 n. 4, 237 N.W.2d at 617 n. 4. Ostensibly, the terroristic threat statute can be utilized by prosecutors as a catch-all provision where misdemeanor offenses, such as disorderly conduct or simple assault, are turned into mid-level felonies. See Minn. Stat. § 609.713, subd. 1 (stating person makes terroristic threat by threatening violent crime with intent to terrorize or with reckless disregard of risk of causing terror). I agree that the terroristic threat statute has its place, but its place is not in this case.
It appears that the terroristic threat statute was employed by the prosecution to ensure that Sailee's inappropriate comment and gesture to a law enforcement officer are not lightly punished. I agree that rudeness to law enforcement officers doing their duty is not insignificant. But I conclude that the facts of this case, even interpreted in the strongest light that the prosecution urges, do not support by proof beyond a reasonable doubt the essential elements of the charge of terroristic threats. I would reverse the conviction.