State v. Wharry

State of Minnesota, Respondent, v. Darsche Chaudaun Wharry, Appellant.

A18-0284

STATE OF MINNESOTA IN COURT OF APPEALS

March 4, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Smith, Tracy M., Judge

Hennepin County District Court

File No. 27-CR-17-11954

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Smith, Tracy M., Judge.

UNPUBLISHED OPINION

SMITH, TRACY M., Judge

Appellant Darsche Chaudaun Wharry was charged with second-degree assault and threats of violence following an incident in which he pointed a shotgun at his brother. Following a jury trial, he was acquitted of assault but convicted of making threats of violence. In this direct appeal, Wharry argues that his conduct did not constitute a threat, that the evidence was insufficient to prove beyond a reasonable doubt that he intended to cause fear, and that parts of a police officer's testimony were erroneously admitted, requiring reversal. We affirm.

FACTS

In 2017, Wharry was living in a house with his mother, L.M., and his half-brother, S.M. In May of that year, S.M. and L.M. had gone out to dinner to celebrate an early Mother's Day. When S.M. and L.M. returned from dinner, Wharry got into an argument with them.

S.M. left the room and went upstairs to his room. Shortly thereafter, he came back downstairs to talk to his mother. While standing on the stairs, S.M. felt as if someone was standing behind him and turned around to see Wharry pointing a shotgun at his head. Wharry imitated the noise of a gun, saying "boom" or "pow." S.M. told Wharry to "knock it off" and said that he was calling the police. Wharry told S.M. to "go ahead." During this brief conversation, according to S.M., Wharry "pulled [the gun] back away and was just waving the gun around as if there was a little intimidation going on." S.M. then hurried back up to his room, closed the door, and called 911. During that call, S.M. told the dispatcher that Wharry had threatened him with the gun. After S.M. went to his room, L.M. told Wharry to put down the gun, and he did so. Based on the 911 call, a number of officers arrived at the home. They instructed the three occupants to come outside, and they did. The police then interviewed S.M. and L.M. and arrested Wharry.

Wharry was charged with second-degree assault—fear. Just before trial the complaint was amended to include a charge of threats of violence.

At trial, there was some evidence suggesting that the shotgun may not have been in working order or that various members of the household may have believed it not to be. One officer testified that Wharry had told him the firing pin had been removed. S.M. testified that he had been told by both L.M. and his father that the gun did not work, but that he was not personally sure whether it did or not. L.M. testified that she did not know whether the gun worked but that she may have told police that it did not work. However, there was no conclusive evidence about whether the shotgun was actually functional.

The jury also heard the testimony of Officer Link, who said that S.M. had told him that S.M. "believed he would have died" and "thought that basically there was an imminent threat to him by having that shotgun pointed at him." Officer Link was also asked whether S.M. had described any past violence by Wharry toward S.M. He responded that S.M. had "mentioned that [Wharry] had been violent toward previous girlfriends." Defense counsel moved for a mistrial based on that statement, and the court denied the motion. Wharry's attorney did not request a cautionary or curative instruction, stating that she believed the prejudice to Wharry from the statement could not be cured by such an instruction.

The jury found Wharry not guilty of second-degree assault and guilty of threats of violence. The district court convicted Wharry of threats of violence, stayed imposition of a sentence, and placed Wharry on probation for three years. Wharry appeals.

DECISION

I. Wharry's conduct was sufficient to constitute a threat to commit a future crime of violence.

Wharry argues that his actions did not constitute a threat within the meaning of Minn. Stat. § 609.713 (2016). He contends that, while pointing a gun could be frightening in the moment, it does not threaten future violence.

Whether conduct meets the statutory definition of a threat of violence is an issue of statutory interpretation that we review de novo. State v. Olson, 887 N.W.2d 692, 697 (Minn. App. 2016).

The seminal case construing Minn. Stat. § 609.713 is State v. Schweppe, in which the Minnesota Supreme Court defined "threat" as "a declaration of an intention to injure another . . . by some unlawful act." 237 N.W.2d 609, 613 (Minn. 1975). In context, the communication must "have a reasonable tendency to create apprehension that its originator will act according to its tenor." Id. (quotation omitted).

Threats need not be verbal or explicit to fall within the scope of section 609.713. In State v. Murphy, the defendant engaged in a "campaign of terror" against members of the criminal justice system. 545 N.W.2d 909, 912-14 (Minn. 1996). Among other things, he slashed tires, threw objects through windows, spray-painted houses with messages like "I'll be back," and left mutilated animals near their homes. Id. Even though this conduct was primarily nonverbal and did not specifically threaten any violence against the residents of those houses, the supreme court held that the acts were implicit threats to commit actual violence in the future. Id. at 915-16.

Wharry's conduct similarly implied that he intended to commit violence in the future. The act of miming the use of a shotgun against S.M., coupled with his instruction to call the police, suggests that Wharry was willing to use the shotgun—or at least to engage in some violence of comparable severity—and that S.M. would need the assistance of the police in order to prevent the impending violence.

Both parties spent a significant proportion of their briefing discussing State v. Brevik, No. A08-0070, 2009 WL 817532 (Minn. App. Mar. 31, 2009), an unpublished decision of this court. Unpublished decisions are not precedential but may be persuasive. Kruse v. Comm'r of Pub. Safety, 906 N.W.2d 554, 559 (Minn. App. 2018). In Brevik, a husband twice drove a van at his wife in a manner that suggested that he was willing to hit her with it—he stopped only a few feet short of a collision each time. Brevik, 2009 WL 817532, at *1. He was charged with and convicted of both second-degree assault and terroristic threats.¹ Id. On appeal, this court held that his conduct was insufficient to constitute a threat because it could not reasonably be interpreted as threatening to commit a future crime of violence. Id. at *4.

Wharry argues that his own conduct should be interpreted in the same way because he did not say anything that would convey a future threat. But Wharry's conduct was not the same as Brevik's. Pointing a shotgun and saying "boom" indicates that the person with the shotgun is currently restraining himself but could fire the shotgun if he wanted to. It foreshadows future violence in a way that driving a car toward a person does not.

Because of the way it suggested future violence, Wharry's conduct had "a reasonable tendency to create apprehension" that Wharry would shoot S.M. See Schweppe, 237 N.W.2d at 613. Wharry's conduct constituted a threat within the meaning of Minn. Stat. § 609.713.

II. The circumstantial evidence was sufficient to prove that Wharry had the requisite intent.

Wharry argues that the state failed to prove beyond a reasonable doubt that he had the necessary intent to support a conviction under Minn. Stat. § 609.713 because the circumstantial evidence introduced by the state did not rule out the possibility that he was merely expressing transitory anger.

When considering a claim of insufficient evidence, appellate courts conduct "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. Hohenwald, 815 N.W.2d 823, 832 (Minn. 2012) (quotation omitted). We will not disturb the verdict if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant is guilty of the charged offense. See Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

If, however, the state relied on circumstantial evidence to prove an element of the offense, an appellate court applies a heightened standard of review. See State v. Al-Naseer, 788 N.W.2d 469, 475 (Minn. 2010). Under this heightened scrutiny, "[c]ircumstantial evidence must form a complete chain that, in view of the evidence as a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable doubt any reasonable inference other than guilt." State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).

An appellate court applying this standard of review engages in a two-step process. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). First, the appellate court determines what circumstances were proved. Id. In doing so, the court examines the evidence in the light most favorable to the verdict and assumes that the jury credited the testimony of the state's witnesses. State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017); State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013). Then, based on the circumstances proved, the court asks whether the circumstances permit an...