                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2016).

                                  STATE OF MINNESOTA
                                  IN COURT OF APPEALS
                                        A16-0097

                                       State of Minnesota,
                                           Respondent,

                                               vs.

                                     Dana John Thompson,
                                          Appellant

                                   Filed January 17, 2016
                                   Reversed and remanded
                                       Worke, Judge

                                Wabasha County District Court
                                   File No. 79-CR-14-412

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Karen Kelly, Wabasha County Attorney, Wabasha, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                           UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his terroristic-threats conviction, arguing that the district court

abused its discretion by failing to instruct the jury on the crime of violence he threatened
and the elements of that crime. Appellant also argues that the district court committed

plain error by failing to give a specific unanimity instruction and raises several issues in

his pro se supplemental brief. We reverse and remand.

                                          FACTS

       In early 2014, appellant Dana John Thompson was involved in legal proceedings

regarding the custody of his daughter. Thompson appeared before the same Hennepin

County judge on multiple occasions. At the first hearing, Thompson yelled, gestured, and

used profane language.

       While his case was pending, Thompson called the judge’s law clerk several times,

left voicemails, and sent the law clerk e-mails. In one voicemail, Thompson said that he

had friends on the Minnesota Board on Judicial Standards and that he was going to report

everyone in the judge’s chambers.

       During a May 2, 2014 telephone hearing, Thompson again yelled and used

profanity. The judge terminated the call. Thompson called back and continued to speak

inappropriately. The judge ended the second call. After the hearing, the judge issued an

order awarding custody of Thompson’s daughter to the child’s mother.             Thompson

responded by sending the judge’s clerk an e-mail saying that the judge had made a mistake

and would be punished. Thompson also said that he wanted the judge to get cancer.

Thompson sent another e-mail that just stated the word “c-nt.”

       On May 2, Thompson also posted several comments to his Facebook page. At

approximately 1:40 p.m., Thompson posted the following comment:                 “ladies and

gentleman [the] judge . . . of the 4th judicial district family court in Hennepin county just


                                             2
took [my daughter] . . . . . . .you know the rest f--k you and there will be penalty.” At about

8:40 p.m., Thompson posted two more comments. The first said, “judge . . . I hope you

trip and fall dunb [sic] b--ch she was gonna graduate her dare calaass [sic] next week stupid

f--k mesheliosphandantialops to9 [sic] you b--ch.” The second was posted directly beneath

the first and said, “1 million to whoever brings me her head in a walmrt [sic] bag. . . .lol.”

       Thompson was charged with one count of terroristic threats for his comments about

the judge and another count of terroristic threats for a comment about a sheriff’s deputy.1

During a police interview, he claimed that his comment about the judge suffering a

“penalty” was a threat to file a complaint with the board on judicial standards. He said that

he previously filed a complaint against a different judge and that judge was reprimanded

as a result. His head-in-a-bag statement was about his daughter’s mother, not the judge.

He also said that the statement was meant as a joke.

       At trial, Thompson’s testimony about the posts was mostly consistent with his

statement to police. A jury convicted him of the terroristic-threats count related to the

judge and acquitted him of the count related to the sheriff’s deputy. This appeal followed.

                                      DECISION

       In his principal brief, Thompson raises two challenges to the district court’s jury

instructions. The district court has wide latitude in crafting jury instructions and will not

be reversed absent an abuse of discretion. State v. Huber, 877 N.W.2d 519, 522 (Minn.

2016). A district court abuses its discretion “if its jury instructions confuse, mislead, or


1
 Thompson was also charged with a third count of terroristic threats for a comment he
made about another judge. That charge was later dismissed by the state.

                                              3
materially misstate the law.”     State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014).

“[D]etailed definitions of the elements to the crime need not be given in the jury

instructions if the instructions do not mislead the jury or allow it to speculate over the

meaning of the elements.” State v. Davis, 864 N.W.2d 171, 177 (Minn. 2015) (quotation

omitted). This court reviews the district court’s “jury instructions as a whole to determine

whether the instructions accurately state the law in a manner that can be understood by the

jury.” Kelley, 855 N.W.2d at 274.

Crime-of-violence-threatened instruction

       Any person who “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” is guilty of terroristic threats. Minn. Stat. § 609.713, subd. 1 (2012) (emphasis

added). Thompson argues that the district court abused its discretion by failing to “identify

the predicate crime of violence” he threatened and by failing to instruct the jury on the

elements of that crime.

       As a threshold matter, the parties disagree on the applicable standard of review.

Thompson argues that he objected to the district court’s instruction and that we should

therefore review for an abuse of discretion. The state argues that Thompson failed to object

and that the district court’s instruction is accordingly subject only to plain-error analysis.

See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (“[A] failure to object will not

cause an appeal to fail if the instructions contain plain error affecting substantial rights or

an error of fundamental law.”).




                                              4
       To preserve an issue for appeal and avoid the plain-error standard, a party must

“bring the issue to the attention of the [district] court.” State v. Onyelobi, 879 N.W.2d 334,

353 n.16 (Minn. 2016) (quotation omitted). The parties and the district court had extensive

discussions about how to instruct the jury on the “crime of violence” requirement.

Thompson’s attorney requested that the crime of violence threatened “be specified as for

second and third degree” assault. The district court rejected that request. Because

Thompson brought the “issue to the attention of the [district] court,” he preserved this issue

for appeal and we review for an abuse of discretion. See id. (quotation omitted).

       The district court failed to instruct the jury on the specific crime of violence

threatened or the elements of that crime. The instruction contained no definition or

explanation of the meaning of “crime of violence.” The state concedes that the district

court’s instruction was erroneous.

       As stated above, a defendant is guilty of terroristic threats only if he threatens to

commit a “crime of violence.” Minn. Stat. § 609.713, subd. 1. “‘[C]rime of violence’ has

the meaning given ‘violent crime’ in section 609.1095, subdivision 1, paragraph (d).” Id.

The definition of “violent crime” does not include domestic assault or fourth- or fifth-

degree assault. Minn. Stat. § 609.1095, subd. 1(d) (2012); State v. Jorgenson, 758 N.W.2d

316, 323 (Minn. App. 2008). Accordingly, to avoid confusing the jury or allowing it to

speculate, “[a] proper jury instruction on a terroristic threats charge must specifically limit

the definition of ‘violent crime’ to the applicable offenses listed in Minn. Stat. § 609.1095,

subd. 1(d).” Jorgenson, 758 N.W.2d at 324. The jury must be instructed on the definition

and elements of the specific crime of violence that the defendant allegedly threatened. Id.


                                              5
at 325; see also 10 Minnesota Practice, CRIMJIG 13.107 (2015) (advising that jury be

instructed on crime of violence threatened and elements of that crime). By failing to abide

by these requirements, the district court abused its discretion.

       When the district court abuses its discretion in instructing the jury, we apply

harmless-error analysis. State v. Watkins, 840 N.W.2d 21, 28-29 (Minn. 2013). “A

properly objected-to instructional error regarding an element of an offense requires a new

trial only if it cannot be said beyond a reasonable doubt that the error had no significant

impact on the verdict.” State v. Koppi, 798 N.W.2d 358, 364 (Minn. 2011) (quotations

omitted).

       The state argues that by asking for the judge’s head in a bag, Thompson threatened

homicide. Because there is no question that homicide is a crime of violence, the state

maintains that the erroneous instruction was harmless. See Minn. Stat. § 609.1095, subd.

1(d) (defining “violent crime” to include first-, second-, and third-degree murder; first- and

second-degree manslaughter; and criminal vehicular homicide). We disagree.

       The head-in-the-bag threat was not the only threat against the judge that the state

alleged at trial. In her closing argument, the prosecutor claimed that Thompson’s statement

that “there will be penalty” was also a threat to commit a crime of violence:

              Now, then we have the first Judge . . . post. This is the, “you
              know the rest f--k you and there will be a penalty.” Again, this
              is another person who . . . Thompson blames for losing
              custody of his child. And again, if you – if you factor in all of
              the behaviors in the courtroom, all of the messages that he sent
              to this judge, the increased security detail in the courtroom and
              near her home, it’s reasonable to conclude that this is a threat.
              This isn’t just a metaphor for judicial reprimand anymore. And
              then you have the “I hope you trip and fall” and “head in a


                                              6
               walmart bag.” Now, that’s a little bit more of a clear image of
               violence, so just think about that in the context of everything
               that happened between . . . Thompson and [the] [j]udge.

Earlier in her closing argument, the prosecutor read the “there will be penalty” post in full

and stated,

               There was a lot of discussion about this post and what exactly
               “penalty” means. On the one hand, . . . Thompson has made it
               very clear on more than one occasion that he’s going to file a
               complaint with the [board on judicial standards], but given his
               history with the Court, it’s pretty reasonable to draw the
               inference that “penalty” means something more here. Think
               about it.

The jury could have convicted Thompson based on a finding that the words “there will be

penalty” threatened an assault that would not meet the definition of “violent crime” in

section 609.1095, subd. 1(d).

       In addition, Thompson raised a plausible defense that the head-in-the-bag comment

was not a serious threat aimed at the judge. In his closing argument, Thompson’s attorney

claimed that the statement referred to the mother of his daughter. This claim was supported

by Thompson’s testimony and his statement to police. More convincingly, Thompson’s

attorney argued that the statement was not a serious threat. This claim is supported by

Thompson’s police interview and the post itself. The post ends with “lol.” Thompson’s

attorney maintained that “lol” stands for “[l]augh out loud” and is “an explicit recognition”

that the post is not a real threat.

       A statement is a threat only if “the communication in its context” would reasonably

“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) (quotation omitted). In addition, a


                                             7
defendant cannot be convicted of terroristic threats unless he acted with the intention of

terrorizing the victim or in “reckless disregard of the risk of causing such terror.” Minn.

Stat. § 609.713, subd. 1. The jury may have determined that the head-in-a-bag post was

not a threat at all or did not show the necessary state of mind for terroristic threats.

Accordingly, Thompson’s conviction may be based on the “there will be penalty” post,

without regard to the head-in-a-bag post.

       The state also argues that the instruction was harmless because Thompson’s attorney

told the jury in his closing argument that “simple assault doesn’t qualify as a crime of

violence.” Therefore, there is no possibility that the jury convicted Thompson based on a

threatened crime that is not a crime of violence. But, in her rebuttal, the prosecutor

explicitly urged the jury to disregard the defense attorney’s explanation of the law and rely

only on the district court’s instructions. The district court’s instructions also directed the

jury to “disregard” any description “of the law that differs from the law I give you.”

Moreover, even assuming that the jury relied on Thompson’s attorney’s explanation of the

law, the jurors were given no instruction on how a “simple assault” differs from an assault

or other offense that does qualify as a crime of violence.

       Finally, the state claims that it is highly unlikely that the jury convicted Thompson

based on a threatened crime that does not meet the definition of crime of violence because

the jury acquitted Thompson of threatening the deputy. The state does not explain why it

believes this to be the case. Regardless, this court has previously stated that acquittals

“shed no light on which circumstances the jury believed or disbelieved.”             State v.

Montermini, 819 N.W.2d 447, 461 (Minn. App. 2012). An acquittal may simply be the


                                              8
result of the jury exercising the “power of lenity.” Id.; see State v. Perkins, 353 N.W.2d

557, 561 (Minn. 1984) (defining the jury’s power of lenity as “the power to bring in a

verdict of not guilty despite the law and the facts”). The acquittal on the deputy count has

no bearing on the count related to the judge.

       The district court’s failure to instruct the jury on the crime threatened and the

elements of that crime allowed the jury to speculate about the meaning of the term “crime

of violence.” Cf. Davis, 864 N.W.2d at 177. The jury may have convicted Thompson

based on a finding that he threatened the judge with an assault that is not a “crime of

violence.” Accordingly, the error was not harmless beyond a reasonable doubt and

warrants a new trial.

Specific unanimity instruction

       Thompson next argues that the district court committed plain error affecting his

substantial rights by failing to give a specific unanimity instruction. The state alleged that

Thompson made multiple threats against the judge, but Thompson was charged with only

one count related to those threats. The lack of a specific unanimity instruction therefore

allowed the jury to convict Thompson without agreeing on which threat constituted the

offense, violating his right to a unanimous verdict. While our decision on the crime of

violence instruction by itself requires reversal, we address the remaining issues raised by

Thompson to give the district court guidance on remand.

       Because Thompson did not object to the lack of a specific unanimity instruction in

district court, we may review only for plain error. State v. Milton, 821 N.W.2d 789, 805

(Minn. 2012). Under the plain-error test, this court considers whether the district court’s


                                                9
instructions contained “an (1) error (2) that was plain and (3) that affected the defendant’s

substantial rights.” Id. If all three of these prongs are established, we determine whether

we must “address the error to ensure [the] fairness and integrity of the judicial

proceedings.” Id. (quotation omitted).

       Error

       In all criminal cases, a jury’s verdict must be unanimous. Minn. R. Crim. P. 26.01,

subd. 1(5). But “the jury need not always decide unanimously which of several possible

means the defendant used to commit the offense in order to conclude that an element has

been proved beyond a reasonable doubt.” State v. Ihle, 640 N.W.2d 910, 918 (Minn. 2002).

For example, in a terroristic-threats case, the jury need not unanimously agree on which of

two victims the defendant intended to terrorize, as long as the jury unanimously agrees that

the defendant committed the crime of terroristic threats. State v. Begbie, 415 N.W.2d 103,

106 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988). This is because “the

terroristic-threats statute does not make the identity of the person who is threatened an

element of the crime.” State v. Stempf, 627 N.W.2d 352, 356 (Minn. App. 2001). However,

if the act itself is an element of the crime, the jury must unanimously agree on which act

the defendant committed. Id. at 355 (citing Richardson v. United States, 526 U.S. 813,

824, 119 S. Ct. 1707, 1713 (1999)).

       In Stempf, the state charged the defendant with one count of possession of a

controlled substance “but alleged two distinct acts to support a conviction: (1) that he

possessed methamphetamine found at the premises of his workplace; and (2) that he

possessed methamphetamine found in the truck in which he was riding when he arrived at


                                             10
work.” Id. at 357. The district court denied Stempf’s request for an instruction requiring

the jury to return a unanimous verdict as to which of these two acts he committed. Id. at

357-58. We stated that when “jury instructions allow for possible significant disagreement

among jurors as to what acts the defendant committed, the instructions violate the

defendant’s right to a unanimous verdict.” Id. at 354. Because “[s]ome jurors could have

believed [Stempf] possessed the methamphetamine found on the premises while other

jurors could have believed [Stempf] possessed the methamphetamine found in the truck,”

the district court’s refusal to give a specific unanimity instruction violated Stempf’s right

to a unanimous verdict. Id. at 358.

       As in Stempf, the state charged Thompson with one count of terroristic threats

against the judge. To convict, the jury had to find that on May 2, 2014, Thompson

threatened to commit a “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. At

trial, however, the state presented two distinct threats that it claimed established the

offense: (1) the “there will be penalty” post, and (2) the head-in-a-bag post.2 The posts

are not part of a single threat as they were separated by approximately seven hours. As




2
  Thompson argues that the state presented evidence of five distinct threats: (1) the penalty
post; (2) a video Thompson e-mailed to the judge’s chambers saying that he hopes she gets
cancer; (3) an e-mail that just said “c--t”; (4) the post saying “I hope you trip and fall”; and
(5) the head-in-a-bag post. Because only the head-in-a-bag and penalty posts make any
discernable threat, we do not address the remaining posts and e-mails. See State v. Olson,
__ N.W.2d __, __, 2016 WL 7041883, at *5 (Minn. App. Dec. 5, 2016) (holding that by
itself a statement expressing a mere hope that another will be subject to a crime of violence
does not constitute a threat for the purposes of terroristic threats).

                                              11
outlined above, in her closing argument, the prosecutor argued that each post was a separate

threat to commit a crime of violence.

       The district court gave a general unanimity instruction. The jury was instructed that

“to return a verdict on any charge whether guilty or not guilty, each juror must agree with

that verdict. Your verdicts must be unanimous.” But the jury was not instructed that it

needed to agree on which threat satisfied the elements of the offense. Like Stempf, the

failure to give the specific unanimity instruction allowed the jury to find Thompson guilty

of the offense while disagreeing as to whether the “there will be penalty” post or head-in-

a-bag post constituted the terroristic threat.

       Plain error

       An error is plain if it “contravenes case law, a rule, or a standard of conduct.” State

v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). The district court’s failure to give a

unanimity instruction violated the precedent set in Stempf.

       Affecting substantial rights

       “An error affects a defendant’s substantial rights if the error was prejudicial and

affected the outcome of the case.” Watkins, 840 N.W.2d at 28. It is the defendant’s burden

to show a “reasonable likelihood that the error had a significant effect on the jury’s verdict.”

Milton, 821 N.W.2d at 809 (quotations omitted). In this case, Thompson must prove that

there is a reasonable likelihood that the jury would not have convicted him had they been

given a specific unanimity instruction.

       Thompson raised distinct and plausible defenses for each of the two threats. As to

the “there will be penalty” threat, his attorney argued in closing that this was merely a


                                                 12
threat to file a complaint against the judge with the board on judicial standards. This

argument was based on Thompson’s testimony and his statement to police. The judge’s

law clerk also testified that Thompson had previously left a voicemail specifically

threatening to report the judge to the board.

          Thompson’s defense to the head-in-a-bag post is outlined above. His attorney made

a plausible argument that because the post ended with “lol,” it was a joke and not a serious

threat.

          Given that Thompson raised distinct and plausible defenses as to both threats, there

is a “reasonable likelihood” that some of the jurors convicted him based on the penalty

threat and other jurors convicted him based on the head-in-a-bag threat. This issue may

have been compounded by the district court’s failure to instruct on the specific crime

threatened. Had the district court instructed, for example, that the jury was required to find

that Thompson threatened homicide, it would have made it difficult for the jurors to convict

based on the “there will be penalty” post. Instead, the manner in which the jury was

instructed allowed some jurors to convict on the penalty threat and others on the head-in-

a-bag threat.

          Fairness and integrity of the judicial proceedings

          Because the first three prongs of the plain-error test are satisfied, we must determine

whether it is necessary to “address the error to ensure [the] fairness and integrity of the

judicial proceedings.” Milton, 821 N.W.2d at 805 (quotation omitted). We conclude that

allowing Thompson to stand convicted of the charged offense when his right to a




                                                13
unanimous verdict was violated and the jury may have acquitted him had they been

properly instructed adversely affects the fairness and integrity of the proceedings.

Pro se claims

         In his pro se supplemental brief, Thompson makes three additional claims: (1) that

the prosecutor lied in closing argument when she said that Thompson threatened to

“punish” the judge; (2) that the district court erred by denying his motion for a Minn. R.

Crim. P. 20.02 evaluation; and (3) that the judge’s law clerk lied during her testimony.

After thoroughly reviewing each claim, we conclude that none has merit.

         In sum, we reverse Thompson’s conviction because the district court failed to

properly instruct the jury on the crime of violence threatened and the elements of that crime.

The district court also committed plain error by failing to give a specific unanimity

instruction. These errors were not harmless and require reversal and remand for a new

trial.

         Reversed and remanded.




                                             14
