In the Matter of the Welfare of: M.J.S.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

In the Matter of the Welfare of:  M.J.S.

Faribault County District Court

File No. JX9950137

Thomas H. Boyd, Karl Edward Robinson, Winthrop & Weinsteine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN  55101 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

Brian D. Roverud, Faribault County Attorney, 125 North Main, P.O. Box 5, Blue Earth, MN  56013 (for respondent)

            Considered and decided by Stoneburner, Presiding Judge, Crippen, Judge, and Anderson, Judge.

ANDERSON, Judge

            Appellant challenges his adjudication as a delinquent.  The district court found appellant guilty of communicating a terroristic threat under Minn. Stat. § 609.713, subd. 2 (1998).   We affirm.

            On April 28, 1999, a week after the Columbine High School shootings, a bomb threat was written on the wall of the boy's bathroom at the United South Central High School in Wells, Minnesota.  The school was evacuated.  The next day, April 29, a bomb threat was written on a student's desk, and the school was again evacuated.   On April 30, 1999, appellant M.J.S. was seen by students writing the words "Bomb on Monday" on the boy's locker-room wall.  Appellant asked his classmates to "watch for the gym teacher" and "not to tell anybody."  That evening, the principal of the high school received a call from a concerned parent and called the Faribault County Sheriff's Office.  Appellant was charged with communicating a terroristic threat under Minn. Stat.  § 609.713, subd. 2 (1998).  The district court adjudicated the dependent delinquent.  Appellant appeals this determination.

Appellant challenges his adjudication of delinquency claiming that the evidence is insufficient to find him guilty of communicating a terroristic threat under Minn. Stat. § 609.713, subd. 2 (1998).  The district court has broad discretion in delinquency dispositions and will be affirmed so long as it is not arbitrary and it achieves the goal of rehabilitating the offender.  In re Welfare of L.K.W., 372 N.W.2d 392, 397 (Minn. App. 1985).  In determining whether the evidence was legally sufficient, this court evaluates the record and the legitimate inferences from the record in the light most
favorable to the adjudication of delinquency.  In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).

The state charged appellant with communicating a terroristic threat under Minn. Stat. § 609.713, subd. 2 (1998), which states:

Whoever communicates to another with purpose to terrorize another or in reckless disregard of the risk of causing such terror, that explosives or an explosive device or any incendiary device is present at a named place or location, whether or not the same is in fact present, may be sentenced to imprisonment, * * * .

Id.  Appellant does not dispute that he wrote the words "Bomb on Monday."  Rather, appellant challenges the district court's determination that in writing those words that  (1) he had reckless disregard of the risk of causing terror, and (2) that he communicated that an explosive device would be present at a particular place or location.

Appellant asserts that the state failed to present evidence that he intended to terrorize.  The word "terrorize" in Minn. Stat. § 609.713 means, "to cause extreme fear by use of violence or threats."  Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998) (quotation omitted), review denied (Minn. July 16, 1998).  Reckless disregard require an actual, conscious disregard of the risk even though not having the specific purpose of terrorizing posed by one's conduct.  State v. Frost, 342 N.W.2d 317, 319-20 (Minn. 1983); State v. Jude, 554, N.W.2d 750, 754 (Minn. App. 1996).

Appellant characterizes the statement "Bomb on Monday" as a flippant remark, a mere joke, and therefore argues that he could not have the requisite intent to terrorize.   In support of this contention appellant cites the dissenting opinion in State v. Taylor, 264 N.W.2d 157 (Minn. 1978),[1]and two Pennsylvania cases. See Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. Ct. 1982), and Commonwealth v. Sullivan, 409 A.2d 888 (Pa. Super. Ct. 1979).  These cases are distinguishable.

The Taylor dissenters questioned whether the defendant's comment constituted a terroristic threat or a flippant remark and stated that they would have remanded the case for a new trial to determine whether the defendant had the specific intent to terrorize.  Taylor, 264 N.W.2d at 160.  The Taylor dissent does not discuss what Minnesota courts consider a flippant remark and merely recognizes that such a remark might not be grounds for sanction under the terroristic-threat statute.  Id. at 159-60.

            Similarly, the Pennsylvania cases cited by appellant are not helpful to his position.  Both Sullivan and Kidd are examples of persons exhibiting transitory anger without the requisite intent to terrorize.  See Sullivan, 409 A.2d at 889 (lack of intent when defendant threatened violence while waiting for the police to arrive at the scene of the crime); Kidd,442 A.2d at 827 (no requisite intent when a drunken man threatened to kill arresting police officers if given the chance).  Similarly, this court has recognized that transitory anger without the requisite intent may not be punishable under Minn. Stat. § 609.713 (1998).  See State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990), (recognizing that that the Model Penal Code and the dissent in Taylor discourage sanctions for transitory anger under Minn. Stat. § 609.713 absent intent, but ultimately holding that defendant had the requisite intent).  Appellant has not shown this court why his actions should be characterized as transitory anger.  The circumstances surrounding appellant's actions do not suggest a high-pressure situation that would cause him to write the words "Bomb on Monday" in anger.  Rather, the circumstances suggest that appellant purposely wrote the words on the wall with reckless disregard of the risk of causing terror.

Appellant points to the following facts to show his lack of intent: (1) none of the witnesses at his trial felt terrorized; (2) two of his friends who testified at the trial considered the statement to be a joke and attended school on Monday; (3) there was no evidence presented that anyone in the locker room detected the statement on the wall during the gym classes later that afternoon; and (4) the school was not evacuated or searched for explosives.  Although these facts may provide circumstantial evidence relevant to assessing appellant's intent to terrorize, See State v. Marchand, 410 N.W.2d 912, 915 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987), the district court as the trier of fact is entitled to determine the credibility of witnesses and the weight given to evidence.  See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  In determining that appellant recklessly disregarded the danger of causing extreme fear the court properly considered the circumstances surrounding the statement.  See State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (Minn. 1975) (intent is usually established by reasonable inference from surrounding circumstances).  The test of whether words or phrases are harmless or threatening is the context in which they are used.  Id. at 399, 237 N.W.2d at 613.  The district court concluded that appellant's statement, written during a period of heightened awareness about school violence, was in reckless disregard of the terror his statement might cause.  Appellant wrote the words "Bomb on Monday" in the wake of the Columbine High School shootings.  In addition, appellant's high school had received two other bomb threats that week.   Whether or not appellant wrote the words as a joke or a flippant remark, he recklessly disregarded the likelihood that his statement would terrorize others at the high school.  The district court decision is supported by the record and is not an abuse of discretion.

            In addition, appellant claims that the state failed to prove another essential element of Minn. Stat. § 609.713, subd. 2 (1998); that he communicated that an explosive device was present at a named placed or location.  Appellant contends that the words "Bomb on Monday" is not place specific.  We disagree.  The statement was written on the high-school-locker room wall after the high school had recently been evacuated twice for bomb threats.  Although the words "at school" were not written the circumstances surrounding the statement support the district court's finding that appellant communicated a specific location. 

            Affirmed.

[1] The defendant in Taylor entered a bus depot carrying a brief case and a paper bag.  State v. Taylor, 264 N.W.2d 157, 157.  When he left the depot he told a women standing outside, "Don't go in there.  There's a bomb in there."  Id.  Defendant was found guilty of making a terroristic threat under Minn. Stat. § 609.713.  Id.  The sole issue on appeal was whether the district court prejudicially erred in allowing certain evidence.  The majority did not consider whether the evidence was sufficient to sustain his conviction, but the dissent questioned whether the use of Minn. Stat. § 609.713 was appropriate.  Id. at 159-60.