State of Minnesota, Respondent, vs. Michael Jon Bailey, Appellant.

State of Minnesota, Respondent, vs. Michael Jon Bailey, Appellant. A05-2107, Court of Appeals Unpublished, April 10, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2107

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Jon Bailey,

Appellant.

 

Filed April 10, 2007

Affirmed in part, reversed in part

Randall, Judge

 

Kittson County District Court

File No. K4-04-179

 

 

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Roger C. Malm, Kittson County Attorney, P.O. Box 790, Hallock, MN  56728 (for respondent)

 

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414-3230 (for appellant)

 

Michael J. Bailey, MCF Faribault, 1101 Linden Lane, Faribault, MN  55021-6400 (pro se appellant)

 

            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction of terroristic threats and fifth-degree assault, appellant argues that (a) the state failed to prove beyond a reasonable doubt the intent required for terroristic threats, and (b) his conviction for fifth-degree assault should be vacated because it was based on the same conduct as the terroristic threats charge.  There was sufficient evidence for a jury to reasonably conclude that appellant committed the offense of terroristic threats.  Because the fifth-degree assault charge was a lesser-included offense of the terroristic threat charge, we vacate appellant's conviction on the assault.  We affirm in part and reverse in part.          

FACTS

            In December 2004, appellant Michael Bailey was charged with one count of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004), for statements he allegedly made to B.J., a Kittson County Deputy Court Administrator.  Appellant pleaded not guilty and a jury trial was held on the matter. 

            At trial, B.J. testified that her first contact with appellant occurred on November 17, 2004, when he came into the court administrator's office to file two civil lawsuits.  B.J. testified that she notarized appellant's signature on his affidavits to proceed in forma pauperis.  Appellant stopped into the court administrator's office several more times in November 2004, to ask questions, file pleadings, or have B.J. notarize documents. 
According to B.J., there was nothing unusual about appellant's demeanor during these visits. 

            B.J. testified that on November 23 or 24, 2004, appellant came into the office and was angry because the district court judge had denied his request to proceed in forma pauperis, and had indicated that appellant's lawsuits were frivolous.  According to B.J., appellant used a more forceful and elevated tone of voice.  B.J. stated that appellant "glared at me.  It was just an uneasy, uncomfortable feeling.  He was just angry."  B.J. further testified that appellant stated "this is not the end of it," and "I'm going to sue the Judge."  Although B.J. did not take appellant's comments as a threat, she testified that she felt that she needed to be cautious in dealing with appellant in the future.      

            On November 29, 2004, a victim services advocate, acting on behalf of a third party, filed a harassment restraining order against appellant.  The next day, B.J. received responsive pleadings from appellant requesting a hearing on the harassment petition and seeking removal of the judge assigned to the case.  Because the district court had denied appellant's petition to proceed in forma pauperis, B.J. notified appellant that she could not file his pleadings without the required $245 fee.   

            B.J. testified that on December 1, 2004, appellant contacted her by telephone demanding to know why he should have to pay a filing fee in a civil suit that he did not initiate.  B.J. explained to appellant that the filing fee applied equally to respondents unless they had in forma pauperis status.  According to B.J., appellant, who was extremely angry, responded that "the Judge was driving him crazy," and that "Do I have to be another Timothy McVeigh?"  B.J. testified that after telling appellant, "I guess that's your choice," appellant replied "I really don't want to do that."  Appellant continued ranting on the phone and B.J. hung up on him.    

            After talking with appellant, B.J. felt sick to her stomach and was "shaky" for most of the day.  B.J. testified that when appellant said the name "Timothy McVeigh," her "stomach felt like it dropped to my feet.  My stomach became upset.  I was shaking inside."  B.J. was aware that McVeigh had bombed a government building in Oklahoma City, and she couldn't believe "that somebody would threaten me like that . . . that he actually would bomb this building just because I'm trying to do my job."   

            B.J. composed a summary of her conversation with appellant and brought it to the sheriff's office.  Shortly thereafter, Deputy Sheriff Steven Porter went to appellant's residence and arrested him for terroristic threats.  Appellant told Deputy Porter that he did not threaten B.J., but "he knew how Timothy McVeigh felt." 

            Pursuant to appellant's request, the district court instructed the jury on fifth-degree assault, along with terroristic threats.  The jury found appellant guilty of both counts.  Appellant subsequently filed a motion for a new trial or to vacate the judgment.  The district court denied the motion at the sentencing hearing.  Also at the sentencing hearing, appellant discharged his public defender and proceeded pro se.  The district court sentenced appellant
to 30 months in prison on his conviction of terroristic threats, and a concurrent 90-day sentence on his conviction for fifth-degree assault.  This appeal followed. 

D E C I S I O N

I.

In considering a claim of insufficient evidence, this court's review "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Minnesota law provides that a person is guilty of making terroristic threats if he "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 or inconvenience."  Minn. Stat. § 609.713, subd. 1 (2004).  A statement is threatening if the "communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor."  State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975) (quotations omitted).  But the statute does not "authorize grave sanctions against the kind of verbal threat which expresses transitory anger which lacks the intent to terrorize."  State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990), (alteration in original) (quotations omitted), review denied (Minn. Feb. 21, 1990).

            Appellant argues that his conviction for terroristic threats must be reversed because the state failed to prove beyond a reasonable doubt that his statement was intended to terrorize and was anything more than an expression of transitory anger.  We disagree. Anger does not always negate a speaker's intent, nor is anger "always transitory."  See, e.g., State v. Stephenson, 361 N.W.2d 844, 845 (Minn. 1985) (ruling that the evidence established that defendant threatened school officials after he was dismissed from a training program and became angry).  Intent is subjective, but may be inferred from the "surrounding circumstances."  Schweppe, 306 Minn. at 401, 237 N.W.2d at 614.  And intent is a question of fact for the fact-finder to resolve.  State v. Alladin, 408 N.W.2d 642, 648 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).  Although the effect of a threat on the victim is not an essential element of the offense, the victim's reaction to the threat can provide "circumstantial evidence relevant to the element of intent."  Schweppe, 306 Minn. at 401, 237 N.W.2d at 614.

            B.J. testified that appellant asked "[d]o I have to be another Timothy McVeigh?"  B.J. stated that she knew that Timothy McVeigh was convicted of bombing a government building in Oklahoma City.  She testified that appellant's comment made her feel shaky, scared, and sick to her stomach.  B.J. further testified that in light of the fact that she worked in a governmental office, she "was scared to death" of the possibility that "maybe the same damn thing would happen here."  This testimony provides circumstantial evidence from which a jury could reasonably infer intent to terrorize.

            Appellant argues his comment was a careless, stupid remark, and that the criminal justice system does not "treat each rash word spoken as a terroristic threat." The record reflects that appellant was angry about the denial of his request to proceed in forma pauperis, and that his anger carried over from his previous visit to the court administrator's office.  Appellant was not only angry with the district court judge who denied his request, but also with the governmental procedures.  Appellant knew he was talking to a government employee and the reference to Timothy McVeigh would carry more weight in light of the fact that Timothy McVeigh was convicted of bombing a government building.  Considering the context in which the statement was made, the statement, at the least, was made with reckless disregard of the risk of causing terror.  See Schweppe, 306 Minn. at 399, 237 N.W.2d at 613 (stating that a statement is threatening if the communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor).  

            We recognize that the case is not overwhelming.  The jury could easily have gone with just the lesser-included offense of fifth-degree assault.  But the jury found appellant guilty of terroristic threats.  We cannot say that, as a matter of law, the jury's verdict is "manifestly and palpably contrary to the evidence."  State v. Houge, 280 Minn. 372, 375-76, 159 N.W.2d 265, 267 (1968).

II.

            Appellant argues that his conviction for fifth-degree assault should be vacated because it is a lesser-included offense of terroristic threats.  Minnesota law provides that a person "may be convicted of either the crime charged or an included offense, but not both."  Minn. Stat. § 609.04, subd. 1 (2004).  An "included offense" is, among other things, "[a] crime necessarily proved if the crime charged were proved."  Id., subd. 1(4).  If a defendant is "formally adjudicated" guilty of both a crime and a lesser-included offense, the conviction for the latter should be vacated.  State v. Plan, 316 N.W.2d 727, 728-29 (Minn. 1982).

            Here, the district court determined that, on the facts of this case, fifth-degree assault is a lesser-included offense of terroristic threats, and granted appellant's request for a jury instruction on fifth-degree assault.  The state agrees that because the district court gave the instruction, believing it to be a lesser-included offense, the court could not convict and sentence (even if concurrently) appellant on both counts.  Appellant's conviction for fifth-degree assault is vacated. 

III.

            Appellant raises a number of issues in his pro se brief, including (1) that Minn. Stat. § 609.713, subd. 1, is unconstitutionally vague; (2) alleged error in the jury instructions; (3) prosecutorial misconduct; (4) selective prosecution; (5) various evidentiary issues; (6) ineffective assistance of appellate counsel; (7) sufficiency of the evidence; (8) probable cause for the complaint; (9) evidentiary issues related to Dr. Grant's testimony; (10) waiver of counsel at the sentencing hearing; and (11) calculation of his criminal history score.  We have examined each of the eleven issues and we conclude that they are either subsumed in our previous analysis of other issues or are not persuasive. 

            Affirmed in part, reversed in part.