                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1863

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Timothy John Bakken,
                                     Appellant.

                              Filed November 23, 2015
                                     Affirmed
                                  Schellhas, Judge

                              Polk County District Court
                               File No. 60-CR-13-1846

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Scott, A Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

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

      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Stoneburner, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges his conviction of terroristic threats, arguing that the evidence

presented at the jury trial was insufficient to prove his guilt and that the jury instruction

on the elements of terroristic threats was plain error that affected his substantial rights.

We affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant Timothy John Bakken with

terroristic threats (reckless disregard of risk), domestic assault, and fourth-degree

criminal damage to property following the events of two days in September 2013. At

Bakken’s jury trial, his mother R.B. testified that as she and Bakken traveled home from

their mutual place of employment, Bakken became angry and began to yell at R.B. and

call her names. He continued to do so when they arrived at their shared residence, and he

began drinking alcoholic beverages. As the night progressed, Bakken threw an empty can

down some stairs and then kicked it at R.B.; “pulled up a chair real close to [R.B.’s] face

and just kept calling [her] names”; and repeatedly opened a glass door and “slamm[ed it

closed] as hard as he could,” to the point that R.B. believed that the door would break. He

also took a remote control and cell phone away from R.B., hurting her wrists in the

process. R.B. felt “[s]cared” and “[d]esperate” and contacted another son for help. That

son came to the residence and called law enforcement. Law enforcement came to the

residence, spoke with Bakken and R.B., and left at R.B.’s insistence because she did not

want to leave the residence and Bakken had gone to sleep and would “be okay now.” But


                                             2
Bakken soon awoke and resumed yelling and calling R.B. names. Law enforcement

returned to the residence and escorted R.B. to another son’s home, where she stayed for

the night.

       The following morning when R.B. returned to her residence, Bakken again began

drinking alcoholic beverages, yelling, and calling R.B. names. At some point that day, he

pushed R.B. into a corner of the kitchen, grabbed her shirt, and “kept shaking [her] back

and forth and telling [her that] he was going to kill [her].” He yelled that she “wasn’t

getting away with . . . [c]alling the police on him.” R.B. “was scared” and “wanted to get

away.” She testified that she was “sure he was not going to kill [her]” because he was her

son, but she “was scared he might hit [her].” Bakken left the room after R.B. hit him on

the back of the head with an ice-cube tray. He returned a few minutes later, grabbed

R.B.’s shirt, pushed her into a corner, shook her again, and stated, “I changed my mind.

I’m not going to kill you. You’re going to live to regret this.” Bakken then repeatedly

yelled “cop caller” directly into R.B.’s ear. He also picked up a kitchen chair, slammed it

up and down on the floor, and banged it on other furniture. He then swept all of the

contents of the kitchen table onto the floor. R.B. eventually left the home because she

“was scared” and “knew [she] had to get out of there.” She reported the events to law

enforcement, who arrested Bakken.

       The jury found Bakken guilty of the charged offenses. This appeal follows.




                                            3
                                     DECISION

                                             I.

       Bakken first argues that the evidence was insufficient to support his conviction of

terroristic threats (reckless disregard of risk). A person commits the crime of 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.” Minn. Stat. § 609.713, subd. 1 (2012).

       Assessing the sufficiency of the evidence involves “a painstaking review of the

record to determine whether the evidence and reasonable inferences drawn therefrom,

viewed in a light most favorable to the verdict, were sufficient to allow the jury to reach

its verdict.” State v. Vang, 847 N.W.2d 248, 258 (Minn. 2014) (quotation omitted). The

appellate court must “assume that the [jury] believed the state’s witnesses and disbelieved

any contrary evidence.” Gulbertson v. State, 843 N.W.2d 240, 245 (Minn. 2014)

(quotation omitted). A guilty verdict will not be reversed “if, giving due regard to the

presumption of innocence and to the prosecution’s burden of proving guilt beyond a

reasonable doubt, the jury could reasonably have found the defendant guilty of the

charged offense.” Vang, 847 N.W.2d at 258 (quotation omitted).

A threat to commit a crime of violence

       “A threat is a declaration of an intention to injure another or his property by some

unlawful act.” State v. Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975).

“[T]he question of whether a given statement is a threat turns on whether the

communication in its context would have a reasonable tendency to create apprehension


                                             4
that its originator will act according to its tenor.” Id. (quotation omitted). All of

Minnesota’s homicide crimes qualify as crimes of violence. See Minn. Stat. § 609.713,

subd. 1 (referring to Minn. Stat. § 609.1095, subd. 1(d) (2012), for list of crimes

qualifying as crimes of violence); Minn. Stat. § 609.1095, subd. 1(d) (listing all of

Minnesota’s murder, manslaughter, and criminal-vehicular-homicide statutes). A

defendant’s statement that he is going to kill a person may qualify as a threat to commit a

crime of violence. See, e.g., Schweppe, 306 Minn. at 400, 237 N.W.2d at 613–14 (stating

that “there was ample evidence to support the conclusion that defendant . . . threatened to

kill” two people and that “[o]bviously, such threats involved a crime of violence

prohibited by our homicide statutes” (quotation omitted)); State v. Dick, 638 N.W.2d 486,

492 (Minn. App. 2002) (concluding that evidence was sufficient to support terroristic-

threats conviction where defendant threatened to kill police officers), review denied

(Minn. Apr. 16, 2002).

       R.B. testified that, when Bakken cornered her in the kitchen, grabbed her shirt, and

shook her, he told her that “he was going to kill [her].” Bakken argues that this statement

was not a threat, but only an expression of “transitory anger” and “fleeting frustration.”

We have stated that “[t]he terroristic-threats statute is not intended to authorize grave

sanctions against the kind of verbal threat which expresses transitory anger which lacks

the intent to terrorize.” State v. Smith, 825 N.W.2d 131, 137 (Minn. App. 2012)

(quotation omitted), review denied (Minn. Mar. 19, 2013). An argument that a statement

qualifies as an expression of transitory anger, rather than a terroristic threat, is a challenge

to the sufficiency of the evidence. See, e.g., id. (concluding that evidence was sufficient


                                               5
to support defendant’s terroristic threats conviction because “the evidence does not

support the theory that [defendant] was expressing transitory anger without any purpose

to terrorize”); State v. Jones, 451 N.W.2d 55, 63 (Minn. App. 1990) (concluding that,

based on evidence presented at trial, “it would be possible for a reasonable jury to

conclude that [defendant] was not expressing ‘transitory anger’”), review denied (Minn.

Feb. 21, 1990); State v. Marchand, 410 N.W.2d 912, 915 (Minn. App. 1987) (“[T]here is

evidence that [defendant] acted with intent and not merely out of transitory anger.

Viewed in the light most favorable to support the jury’s finding of guilt, we conclude that

this evidence of intent is sufficient to permit the jury to reach that conclusion.”), review

denied (Minn. Oct. 21, 1987).

       Here, the evidence supports a conclusion that Bakken’s anger was not merely

“transitory” or “fleeting.” Bakken’s yelling, name calling, destruction of the home, and

threats toward R.B. took place over the course of two days and caused law enforcement

to be called three times. Cf. State v. Fischer, 354 N.W.2d 29, 34 (Minn. App. 1984)

(responding to defendant’s transitory-anger argument by stating that “[i]t is a mockery to

suggest [defendant’s] actions were spur-of-the-moment threats” when those actions

continued for almost six hours), review denied (Minn. Dec. 20, 1984). On the second day,

Bakken remained angry about law enforcement being called the day before, resulting in

him cornering R.B., grabbing her shirt, shaking her back and forth, and telling her that

“he was going to kill [her]” and that she “wasn’t getting away with . . . [c]alling the

police on him.” R.B.’s testimony provided sufficient evidence for the jury to find that

Bakken threatened to commit a crime of violence.


                                             6
In reckless disregard of the risk of causing terror

       In the context of a terroristic-threats conviction, “[r]ecklessness requires deliberate

action in disregard of a known, substantial risk.” State v. Bjergum, 771 N.W.2d 53, 57

(Minn. App. 2009), review denied (Minn. Nov. 17, 2009). “[A] person who might lack a

specific intent to threaten or terrorize may nevertheless utter an objectively threatening

statement recklessly, committing a terroristic-threats crime. By acting without regard to a

known, substantial risk, a person’s threats, however intended, may violate the statute.” Id.

“Terrorize means to cause extreme fear by use of violence or threats.” Schweppe, 306

Minn. at 400, 237 N.W.2d at 614.

       Bakken’s behavior on the first day resulted in law enforcement being called twice

and R.B. leaving the home for the night. Bakken continued his behavior the following

day, pushed R.B. into a corner, grabbed her shirt, shook her back and forth, told her that

he was going to kill her, and yelled that she would not get away with calling law

enforcement. Bakken points to R.B.’s testimony that she did not believe that he would

kill her. But a victim’s belief that a defendant will carry out a threat is not a necessary

element of the crime of terroristic threats. See id. at 401, 237 N.W.2d at 614 (stating that

“[t]he effect of a terroristic threat on the victim is not an essential element of the statutory

offense”). R.B.’s testimony provided sufficient evidence for the jury to find that Bakken

threatened her with a reckless disregard of the risk of causing her terror. The evidence

presented at trial was sufficient to prove Bakken guilty of terroristic threats (reckless

disregard of risk).




                                               7
                                              II.

       Bakken also argues that the jury instruction on the elements of terroristic threats

was erroneous and that the error affected his substantial rights. A conviction of terroristic

threats requires that the defendant have “threaten[ed] . . . to commit any crime of

violence.” Minn. Stat. § 609.713, subd. 1. The district court instructed the jury that an

element of the crime of terroristic threats is that “the defendant threatened, directly or

indirectly, to commit a crime of violence.” The court further instructed the jury that “in

Minnesota, murder is a crime of violence.” Bakken argues that the district court erred by

failing to provide an instruction defining and providing the elements of a murder crime.

He admits that he did not object to the jury instructions, but he contends that the

instructions were plain error that affected his substantial rights.

       “A defendant generally forfeits the right to contest jury instructions on appeal

when the defendant fails to object at trial,” but “[a]n exception to this general rule allows

[an appellate court] to consider such a claim under plain-error review[.]” State v. Davis,

864 N.W.2d 171, 176 (Minn. 2015). The defendant “must establish that there was an

error, the error was plain, and the error affected his substantial rights.” State v. Bustos,

861 N.W.2d 655, 660 (Minn. 2015). If the appellate court determines that a plain error

affected the defendant’s substantial rights, the court “may correct the error only if it

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Davis, 864 N.W.2d at 176 (quotation omitted).

       “An error is plain if it is clear or obvious; usually this means an error that violates

or contradicts case law, a rule, or an applicable standard of conduct.” Bustos, 861 N.W.2d


                                               8
at 660–61 (quotation omitted). “When reviewing jury instructions for error, [an appellate

court] review[s] the instructions in their entirety to determine whether they fairly and

adequately explain the law.” State v. Moore, 846 N.W.2d 83, 90 (Minn. 2014). While

district courts are given “considerable latitude” in selecting the language of jury

instructions, “[j]ury instructions that confuse, mislead, or materially misstate the law are

erroneous.” Davis, 864 N.W.2d at 176 (quotation omitted).

       “[F]ailure to properly instruct the jury on all elements of the offense charged is

plain error.” State v. Vance, 734 N.W.2d 650, 658 (Minn. 2007), overruled on other

grounds by State v. Fleck, 810 N.W.2d 303, 311 (Minn. 2012). We have stated that “[t]o

convict a defendant on a charge of felony terroristic threats, a jury must find that the

defendant threatened a specific predicate crime of violence” and that “the jury must be

informed of the elements of that essential predicate offense.” State v. Jorgenson, 758

N.W.2d 316, 325 (Minn. App. 2008), review denied (Minn. Feb. 17, 2009). And the jury

instruction guide on the elements of the crime of terroristic threats provides for the

insertion of the definition and elements of a specific crime of violence. See 10 Minnesota

Practice, CRIMJIG 13.107 (Supp. 2012). We conclude that the failure to include the

elements of a murder crime in the jury instructions was plain error.

       But we also conclude that the failure to include those elements in the jury

instructions did not affect Bakken’s substantial rights. “In the context of jury instructions,

[the supreme court has] held that an error affects substantial rights when there is a

reasonable likelihood that a more accurate instruction would have changed the outcome

in th[e] case.” State v. Gutierrez, 667 N.W.2d 426, 434–35 (Minn. 2003) (quotation


                                              9
omitted). R.B. testified that Bakken told her that he was going to kill her. Even if the jury

had been instructed that causing the death of a human with intent and premeditation

constitutes first-degree murder or that causing the death of a human with intent but

without premeditation constitutes second-degree murder, the jury would undoubtedly

have concluded that Bakken threatened to commit a crime of violence. See Minn. Stat.

§ 609.185(a)(1) (2012) (stating that “caus[ing] the death of a human being with

premeditation and with intent to effect the death of the person or of another” is first-

degree murder); Minn. Stat. § 609.19, subd. 1(1) (2012) (stating that “caus[ing] the death

of a human being with intent to effect the death of that person or another, but without

premeditation” is second-degree murder). Because there is no reasonable likelihood that

an accurate instruction would have changed the jury’s verdict, Bakken is not entitled to

reversal of his conviction of terroristic threats.

       Affirmed.




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