Opinion
No. C2-96-1813.
Filed June 10, 1997.
Appeal from the District Court, Scott County, File No. 199603400.
Hubert H. Humphrey, III, State Attorney General, and
Thomas John Harbinson, Scott County Attorney, Brent S. Schafer, Conrad Skonieczny, Assistant County Attorneys, (for Respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, (for Appellant)
Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Johnny Daniel contends that the evidence is insufficient to permit a verdict that he was guilty on two counts of terroristic threats. He also argues that the trial court erred when it sentenced him to two consecutive 21-month sentences. We affirm the conviction but reverse and remand for resentencing.
FACTS
In March 1996, according to the mother of appellant's girlfriend, appellant became irritated with the mother during one of several phone conversations and told her that he was going to use a gun and kill her. Appellant's statement frightened the mother and she reported the threat to the Shakopee police department. She later demanded that the police go to her daughter's home to ensure her daughter's safety.
Two police officers proceeded to the residence, where appellant's girlfriend told them that she was afraid of appellant and asked the officers to remove him. She informed one officer that appellant told her he would break her neck if she did not instruct her mother to stop calling them. The friend also informed officers that appellant told her to convey to her mother that if anything happened to him that night, the mother should get a spoon and dig her own grave because that would be where she was going. Police arrested appellant, and the state charged him with three counts of terroristic threats.
Appellant did not testify at trial, nor did his counsel call any witnesses. The jury returned a guilty verdict on two of the charges, one for conduct toward appellant's girlfriend and one for conduct toward her mother. During his sentencing hearing, appellant fired his attorney and asked the trial court for an acquittal based on his attorney's ineffective representation. The court denied the motion and sentenced appellant to two 21-month consecutive sentences. Initially, the court stayed the sentences, but the court later complied with appellant's request to execute the sentences.
DECISION
Appellant argues that because he did not testify, the state could only have proven the element of his intent by circumstantial evidence. Accordingly, he urges the court to apply the circumstantial evidence standard of review in which the verdict will be sustained "when the reasonable inferences from such evidence are consistent only with defendant's guilt and inconsistent with any rational hypothesis except that of guilt." State v. Alton , 432 N.W.2d 754, 756 (Minn. 1988).
It is undisputed that other elements of the offense were proven by direct evidence of threats that were made. And there is no authority for the proposition that the intent to threaten another can be proven only by direct evidence of the perpetrator's state of mind. See State v. Schweppe , 306 Minn. 395, 400-01, 237 N.W.2d 609, 614 (1975) (holding that the intent to terrorize is established by evidence either that defendant uttered a threat directly to the threatened person or that he had reason to know it would be communicated to the person and, alternatively, that the statute permits proof that a statement is made in reckless disregard of the risk of causing terror).
Accordingly, we follow the general standard of review, examining the evidence in the light most favorable to the verdict to determine if it was sufficient to permit the jury, acting with due regard for the need to overcome the presumption of innocence by proof beyond a reasonable doubt, to reach the verdict it did. State v. Arrendondo, 531 N.W.2d 841, 844 (Minn. 1995).
1. Sufficiency of the Evidence
Appellant was convicted of violating Minn. Stat. § 609.713, subd. 1 (1996) (proscribing terroristic threats). The elements of the offense are (1) threats made by the accused, (2) threats to commit a crime of violence, and (3) threats made with the purpose to terrorize another or in reckless disregard of the risk of terrorizing another. Schweppe , 306 Minn. at 399, 237 N.W.2d at 613. To "terrorize" means "to cause extreme fear by use of violence or threats." Id. at 400, 237 N.W.2d at 614.
We conclude that the evidence was sufficient to allow the jurors to find appellant guilty. One witness testified that appellant told her that he would kill her with a gun. Appellant's girlfriend testified that appellant told her that he would break her neck. Both statements are threats to commit a crime of violence. And the fact that both victims stated that they were fearful of appellant's threats is circumstantial evidence that appellant intended to terrorize them. Id. at 401, 237 N.W.2d at 614. Moreover, threats of this magnitude, to kill with a gun or to break another's neck, permitted the jury to conclude that appellant made them with reckless disregard that the statements would terrorize the recipients.
Appellant also asserts the transitory anger defense, citing a Model Penal Code comment that the purpose of a terroristic threats statute is not "`to authorize grave sanctions against the kind of verbal threat which expresses transitory anger' which lacks the intent to terrorize." See State v. Jones , 451 N.W.2d 55, 63 (Minn.App. 1990) (quoting 10 U.L.A. Model Penal Code, Sec. 211.3 (Tent. Draft 1960) Sec. 211-3 Comments), review denied (Minn. Feb. 21, 1990). See generally State v. Taylor , 264 N.W.2d 157, 159-60 (Minn. 1978) (Sheran, C.J., dissenting). Appellant cites no cases in which an appellate court in this state has applied the defense of transitory anger.
Several cases have considered and rejected the defense of transitory anger. See State v. Marchand , 410 N.W.2d 912, 915 (Minn.App. 1987) (holding transitory anger defense inapplicable where defendant indicated that he yelled at victim so that she would be permanently afraid of towing his car), review denied (Minn. Oct. 21, 1987); State v. Fischer , 354 N.W.2d 29, 34 (Minn.App. 1984) (holding transitory anger defense inapplicable when defendant's actions continued for almost six hours and were consistent with his behavior for the past 18 months), review denied (Minn. Dec. 20, 1984). We decline to initiate employment of the doctrine. Moreover, the evidence here shows that appellant sought a permanent change in the telephone practices of his girlfriend's mother, not a mere transitory concern.
2. Sentencing
Appellant correctly asserts that the trial court misapplied the Minnesota Sentencing Guidelines in sentencing him to two consecutive 21-month sentences. Section II.F.02 of the sentencing guidelines controls the sentence for the second count. That section states that the "presumptive duration for each offense sentenced consecutive to another offense(s) is determined by the severity level appropriate to the conviction offense at the zero criminal history column." Minn. Sent. Guidelines II.F.02. Based on this provision, both parties agree that the sentence for the second conviction should have been 12 months, not 21 months as determined by the trial court. The correct sentence for the first count of terroristic threats (a level IV offense) should have been 18 months in light of appellant's criminal history score of 2. Minn. Sent. Guidelines, Sentencing Guidelines Grid. Accordingly, our review of the sentencing guidelines indicates that the correct sentence should have been for 18 months consecutive with 12 months for a total sentence of 30 months. We remand for resentencing consistent with the guidelines.
Respondent notes that the sentence for the first count should have been for 24 months. Because respondent does not cite any authority for this proposition and 24 months does not appear on the sentencing guideline grid for a level IV offense, we assume this is a typographical error.
3. Ineffective Assistance of Counsel
In his pro se brief, appellant argues that his sentence should be reversed because he received ineffective assistance of counsel. In general, it is inappropriate for appellant to assert this claim on appeal because we do not have the benefit of all of the facts pertinent to the actions of trial counsel. State v. Cermak , 350 N.W.2d 328, 332 n. 5 (Minn. 1984). Rather, the claim should be addressed at post-conviction proceedings. State v. Wenberg , 357 N.W.2d 355, 356 (Minn.App. 1984), review denied (Minn. Feb. 6, 1985). We decline to review appellant's claim in this direct appeal.