Opinion
No. CX-97-1200.
Filed May 19, 1998.
Appeal from the District Court, Polk County, File No. K29749.
Hubert H. Humphrey, III, Attorney General, and
Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, (for respondent)
John M. Stuart, State Public Defender, Bradford S. Delapena, 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This opinion will be unpublished and may not be cited except as provided by Minn.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 (1996).
UNPUBLISHED OPINION
Appellant Keith Tellinghuisen challenges the sufficiency of the evidence to support his convictions for terroristic threats and first-degree burglary. We affirm.
These crimes occurred on September 14, 1996. Appellant was also convicted on four counts of unlawful behavior that occurred on September 24, 1996. He received concurrent sentences on all of these convictions, the longest of which is 141 months for one count of first-degree burglary on September 24, a 30-month upward departure.
DECISION
Given the facts in the record, along with the legitimate inferences that can be drawn from those facts, with a view of the evidence most favorable to the jury's verdict and an assumption that the jury believed supportive testimony, this court's role in reviewing a claim of insufficiency of the evidence is limited to ascertaining whether the jury could reasonably conclude, with due regard for the need to overcome the presumption of innocence by proof beyond a reasonable doubt, that the defendant was guilty of the offense charged. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).
Terroristic Threats.
On September 14, 1996, appellant threatened to kill his girlfriend if he caught her cheating on him. Under Minn. Stat. § 609.713 (1996), a terroristic threat is defined as a threat "to commit any crime of violence with the purpose to terrorize another" or a threat made with "reckless disregard of the risk of causing such terror." To terrorize is to cause "extreme fear." State v. Schweppe , 306 Minn. 395, 400, 237 N.W.2d 609, 614 (1975). When deciding whether words constitute a threat, the court looks to the context in which they were used. Id. at 399, 237 N.W.2d at 613. The court asks "whether the `communication' `in its context' would `have a reasonable tendency to create apprehension that its originator will act according to its tenor.'" Id. (citations omitted).
We find no merit in appellant's arguments. Appellant claims that because the victim's testimony was confusing and uncertain as to the threats, the state made a showing of the context inadequate for the conviction. Regardless of the details as to when the threat was made, its meaning has significance when put in the context of their abusive relationship. See State v. Fischer , 354 N.W.2d 29, 33 (Minn.App. 1984) (holding that "evidence of appellant's prior relationship with the victims was relevant to establish appellant's intent and motive for making the threats"), review denied (Minn. Dec. 20, 1984). The victim testified at trial that appellant had a history of acting out violently towards her and in one encounter broke her tailbone.
Appellant also contends that the state failed to prove that he had the intent to terrorize the victim by causing "extreme fear." Schweppe, at 400, 237 N.W.2d at 614. He argues that the threat was conditional because he said he would kill her "if" he caught her cheating on him. This argument fails, because his intent may have been to terrorize her, regardless of whether the threat itself was conditional. The statute draws no exception for conditional threats.
Appellant further argues that the victim's unremarkable reaction to the threat shows that he did not cause her extreme fear. The effect of the threat on the victim is not an element of the crime, but may be used as circumstantial evidence of appellant's intent. Id. at 401, 237 N.W.2d at 614. Moreover, the evidence shows a reaction of the victim consistent with her testimony that she believed appellant would act on his threat. The record includes evidence that she made arrangements to sneak out the back door of the bar without appellant after the threat was made.
Burglary.
Appellant contends that there was insufficient evidence to convict him of burglary because the state failed to prove that he committed criminal damage to property "while in the building" as required by Minn. Stat. § 609.582 (1996). Appellant does not deny that he broke the screen and the planter, but contends that they were broken prior to or incident to his entry and therefore not while in the building.
Respondent correctly observes that appellant asks this court to narrowly construe the burglary statute in a manner that is directly in conflict with case law. In State v. Nelson , 363 N.W.2d 81, 83 (Minn.App. 1985), this court stated that "[e]ntry is almost universally defined as the intrusion of any part of the offender's body into the premises." In Nelson , this court held that stepping through the window with one leg was sufficient evidence of entry to sustain a burglary conviction. Id. Here, appellant broke the window screen and at least one potted plant while he was climbing through the window. Thus, if he broke either the screen or the planter while either his hand or leg or any other part of his body was inside the apartment, that is sufficient to constitute committing a property crime "while in the building." Based on this evidence, the jury could have reasonably concluded that appellant committed the property damage while in the apartment.
3. Other claims.
In his pro se brief, appellant claims ineffective assistance of counsel, making numerous assertions of fact, including the lack of communication with his lawyer and its effect on the development of his defense, both in the cross-examination of witnesses and the offering of evidence. The present record includes too little information to permit us to assess the merits of his claim. As a result, we refrain from deciding the issue. Appellant is not foreclosed from initiating post-conviction proceedings to permit exploration of his ineffective assistance of counsel claim.
Appellant, in his pro se reply brief, contends that this court should reject respondent's brief in its entirety because of inappropriate comments. In its brief, the state referred to appellant as a "career criminal," a "domestic abuser" and a "liar." Referring to appellant's ineffective assistance of counsel claim, the state characterized appellant's argument as "sour grapes from a career criminal who finally has received his just punishment." We have disregarded the objectionable contents in respondent's brief. It is unnecessary to strike the entire brief. See AFSCME, Council No. 14 v. Scott County , 530 N.W.2d 218, 222-23 (Minn.App. 1995) (court may selectively disregard improper references to evidence outside the record without striking the entire brief), review denied (Minn. June 14, 1995).