Opinion
No. C7-98-287.
Filed November 17, 1998.
Appeal from the District Court, Hennepin County, File No. 97020405.
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, (for appellant).
Hubert H. Humphrey, III, Attorney General, and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, (for respondent).
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
After an altercation with his ex-girlfriend, William Maurice Hurd was convicted of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996). On appeal, Hurd argues the evidence was insufficient to sustain the conviction. We affirm.
DECISION
Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences taken from those facts, a jury could reasonably find the defendant guilty of the offense. State v. Merrill , 274 N.W.2d 99, 111 (Minn. 1978). This court will not retry the facts, but instead views the evidence in the light most favorable to the jury's verdict and assumes the jury believed the state's witnesses and disbelieved any contrary evidence. Id .
Hurd argues the evidence was insufficient to support his conviction because hearsay testimony admitted as excited utterances, that he threatened his ex-girlfriend with a gun was less credible than contrary trial testimony by the same declarants. Cf. State v. Bowles , 530 N.W.2d 521, 534 (Minn. 1995) (recognizing new trial may be appropriate due to recanted testimony of material witness unless trial court finds recantation is not genuine). However, when testimony is properly admitted under the "excited utterance" hearsay exception, the jury determines its credibility. See State v. Edwards , 485 N.W.2d 911, 914 (Minn. 1992) (holding statement to police officer who began questioning witness shortly after assault was excited utterance); State v. Daniels , 380 N.W.2d 777, 782 (Minn. 1986) (concluding testimony by witnesses other than declarant about declarant's prior statements was admissible under excited utterance hearsay exception); State v. Pieschke , 295 N.W.2d 580, 584 (Minn. 1980) (noting it is jury's exclusive function to determine credibility of witnesses, and resolve conflicts or inconsistencies in their testimony).
Viewing the evidence in the light most favorable to the verdict, the record demonstrates: (1) police officers responded to a 911 call that identified a man named "Herb" as threatening two women and a child; (2) on the way to the scene, the police officers were flagged down by Hurd's ex-girlfriend who claimed Hurd just threatened to kill her and her friend; (3) at the scene, both women told the police officers Hurd pointed a black handgun at them and threatened to kill them; (4) a witness across the street told police officers she called 911 because she saw and heard Hurd threatening two women; (5) the three witnesses' independent statements were consistent with each other; (6) the police officers testified all three witnesses appeared scared and agitated; and (7) a black handgun was found hidden at the scene. Given these facts, the jury could reasonably conclude Hurd was guilty of making terroristic threats. See Minn. Stat. § 609.713, subd. 1 (defining terroristic treats as threatening, directly or indirectly, to commit any crime of violence with purpose to terrorize another or with reckless disregard of causing such terror).