State of Minnesota, Respondent, vs. Brent James Kolander, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-03-286

 

State of Minnesota,
Respondent,
 
vs.
 
Brent James Kolander,
Appellant.

 

Filed October 28, 2003

Affirmed

Wright, Judge

 

Nobles County District Court

File No. K100436

 

 

John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Jerome L. Getz, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Gordon L. Moore, III, Nobles County Attorney, Prairie Justice Center, 1530 Airport Road, #400, Worthington, MN  56187 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Harten, Judge; and Anderson, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his conviction of two counts of terroristic threats, arguing that the state failed to prove that his statements to police were more than expressions of transitory anger influenced by his intoxication.  We affirm.

FACTS

 

Worthington police officers stopped appellant Brent James Kolander for suspicion of driving under the influence of alcohol.  Officers Adam Flynn and Chris Heinrichs testified that, during their attempts to place Kolander under arrest, he was not cooperative.  A videotape recording of the arrest shows Kolander swearing at the officers, disregarding their orders, and attempting to kick Heinrichs during the pat-down process.

The officers' testimony and the video evidence taken while Kolander was escorted to the Worthington Law Enforcement Center reflect that Kolander threatened to physically harm Heinrichs, repeatedly asked Heinrichs whether he was afraid, and stated that Heinrichs should be afraid because Kolander knew exactly where Heinrichs lived. 

When Kolander arrived at the law enforcement center, he refused to leave the squad car.  Kolander spat in Heinrichs's face when he was removed from the squad car.  Heinrichs brought Kolander to the ground, and Kolander's head was injured.  Heinrichs and Flynn then transported Kolander to the emergency room for medical attention to his head. 

At the emergency room, Officer Kirk Honius arrived as backup for Flynn and Heinrichs.  Kolander told Honius that he knew where Honius lived[1] and was going to have sex with Honius's wife and hurt Honius's children.  Kolander also directed Honius to move closer to him so that Kolander could grab Honius's gun and kill Honius. 

During the police escort back to the law enforcement center, Kolander again threatened to physically harm Heinrichs.  Kolander also warned Heinrichs that he knew where Heinrichs lived and that Kolander was going to harm Heinrichs's wife and child. 

Kolander was charged with driving under the influence of alcohol, in violation of Minn. Stat. § 169.121, subds. 1(a), 3(c)(2) (2000); obstructing legal process, in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2) (2000); and two counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000). 

At trial, Kolander admitted (1) telling Heinrichs that he was going to twist Heinrichs's neck and that Heinrichs would not walk after Kolander was through with him, (2) making the statement with the intent to scare Heinrichs because Kolander was angry, and (3) stating that Kolander knew where Heinrichs lived and making references to Heinrichs's wife and child. 

Kolander also admitted that it was possible that he made statements threatening Honius and his family and that he was aware that Honius and his family lived within two blocks of Kolander's residence.  But Kolander denied threatening to kill Honius with Honius's gun, explaining that Kolander meant someone could grab Honius's gun and kill Honius because the gun was clearly visible. 

            The jury found Kolander guilty of driving under the influence of alcohol, obstructing legal process, and two counts of terroristic threats.  Kolander appeals his terroristic threats convictions. 

D E C I S I O N

 

In considering a claim of insufficient evidence, our review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We will not disturb a verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Dick, 638 N.W.2d 486, 492 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). Resolution of conflicts and inconsistencies in testimony is the province of the jury, not an appellate court.  State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).

A person is guilty of making terroristic threats against another if that person "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 (2000).  The statute, however, is not meant "to authorize grave sanctions against the kind of verbal threat which expresses transitory anger, [but] lacks the intent to terrorize."  Jones, 451 N.W.2d at 63 (emphasis in original) (quotation omitted). 

            Whether a given statement is a threat turns on whether the "communication ‘in its context' would ‘have a reasonable tendency to create the apprehension that its originator will act according to its tenor.'"  State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).  In challenging the sufficiency of the evidence, Kolander argues that his statements to Heinrichs and Honius were not threats but mere expressions of transitory anger.  We disagree. 

The record contains ample evidence that Kolander made specific threats to the officers and their families and told the officers that he knew where they lived.  His conduct, including threats against the personal safety of others, spitting, kicking and struggling with the officers, was not transitory.  It continued over a period of two hours.  We recently held that a jury could reasonably conclude that this type of conduct constitutes terroristic threats.  See Dick, 638 N.W.2d at 492 (holding that officers' testimony that an intoxicated arrest suspect spat on officers and threatened to find out where officers lived and "skin" them was sufficient evidence under the statute).  Likewise, there is sufficient evidence here from which the jury could reasonably conclude that Kolander's statements to Honius and Heinrichs were terroristic threats, not expressions of transitory anger.

Kolander also argues that, because he was intoxicated and was not serious about carrying out the threats, he lacked the intent to terrorize Honius and Heinrichs.  The statute requires a threat of a violent crime to be made either with the purpose to terrorize another or with reckless disregard for the risk of causing terror.  Minn. Stat. § 609.713, subd. 1.  In this context, purpose means "aim, objective or intention and terrorize means to cause extreme fear by use of violence or threats."  Sykes v. State, 578 N.W.2d 807, 811 (Minn. App. 1998), review denied (Minn. July 16, 1998).  "Intent . . . is a subjective state of mind usually established only by reasonable inference from surrounding circumstances." Schweppe, 306 Minn. at 401, 237 N.W.2d at 614.  Ultimately, one's intent is a question of fact for the jury to resolve.  See State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995). 

As to voluntary intoxication, thejury was instructed that

in this case both the State and the defendant have introduced evidence of intoxication.  It is not a defense to a crime that the defendant was intoxicated at the time of the act if the defendant voluntarily became intoxicated.  However, if it is an element of a crime that the defendant had a particular intent you should consider whether the defendant was intoxicated, and if so, whether the defendant was capable of forming the required intent.

           

In light of this instruction, the jury's verdict reflects the finding that Kolander was not intoxicated beyond the ability to form the required intent.  The evidence supports this determination.

The video evidence and the witness testimony establish that Kolander repeatedly threatened Honius and Heinrichs over a period of two hours and indicated that he could carry out his threats.  Kolander's testimony alone supports the jury's finding that Kolander possessed the requisite intent to terrorize Honius and Heinrichs or, at minimum, that Kolander recklessly disregarded the risk of causing terror in the officers. 

The complainant's reaction to the threats is circumstantial evidence relevant to the element of intent.  Jones, 451 N.W.2d at 63.  Heinrichs testified that Kolander's statements were distinguishable from other "unpleasant" remarks made by suspects for two reasonsthe threats were made repeatedly and the threats specifically targeted his wife and child.  Honius testified, "I live within two blocks of . . . where [Kolander] lives so I felt the threats would--he could carry them out and I was--he knew where I lived and I was concerned for my family."  The record establishes that the officers took Kolander's comments seriously and were concerned for their safety and that of their families. 

            Viewing the evidence in the light most favorable to the verdict, the jury could reasonably conclude that Kolander threatened to harm Honius and Heinrichs with the intent to terrorize the officers or, at minimum, with reckless disregard for the risk of causing terror in them. 

            Affirmed.

[1]  At that time, Honius and his family lived in close proximity to Kolander's residence.