Opinion
No. C4-97-205.
Filed December 2, 1997.
Appeal from the District Court, Cottonwood County, File No. K896124.
Hubert H. Humphrey, III, Minnesota Attorney General, Paul R. Kempainen, Assistant Attorney General, and
L. Douglas Storey, Cottonwood County Attorney, (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
A jury convicted William Bruce Erwin of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996), and fifth degree assault in violation of Minn. Stat. § 609.224, subd. 1(1)(2) (1996). On appeal, Erwin argues: (1) the evidence is insufficient to sustain his conviction for terroristic threats; and (2) the trial court abused its discretion in not questioning a juror who allegedly fell asleep during defense counsel's closing statement. We affirm.
DECISION
When evaluating the sufficiency of the evidence supporting a conviction, our review is limited to whether a jury could reasonably have found the defendant guilty of the charged offense. State v. Davidson , 481 N.W.2d 51, 58 (Minn. 1992) (quoting State v. Alton , 432 N.W.2d 754, 756 (Minn. 1988)). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses while disbelieving any contrary evidence. State v. McKenzie , 511 N.W.2d 14, 17 (Minn. 1994) (citing State v. Ulvinen , 313 N.W.2d 425, 428 (Minn. 1981)). The decision to grant a hearing on juror misconduct is a matter of discretion for the trial court. State v. Larson , 281 N.W.2d 481, 484 (Minn. 1979) (quoting Zimmerman v . Witte Transp. Co., 259 N.W.2d 260, 262 (Minn. 1977).
Erwin argues the state presented insufficient evidence that his statements were threats intended to terrorize his victim. See Minn. Stat. § 609.713, subd. 1 (1996) (defining terroristic threats as threats to commit an act of violence with purpose to terrorize or with reckless disregard of causing such terror); State v. Schweppe , 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975) (concluding victim's reaction to threat circumstantial evidence relevant to element of intent). However, the record demonstrates: (1) Erwin held a knife to the victim's face and punched him with his fist; (2) Erwin asked the victim if he would like Erwin to "stick" the knife "through * * * [his] neck"; (3) Erwin pushed the victim out of the building and told him not to return or he would "do the same" to him; and (4) the victim was frightened by Erwin's statements and conduct. Given these facts, there is ample evidence to support the verdict.
Erwin also argues the trial court committed reversible error when it failed to question a juror who allegedly fell asleep during defense counsel's closing argument. We disagree. A hearing on the issue of alleged juror misconduct is not mandated until the defendant establishes a prima facie case that, standing alone and unchallenged, would warrant the conclusion of misconduct. State v. Anderson , 379 N.W.2d 70, 80 (Minn. 1985). Erwin claims the allegations of three interested parties support a conclusion of misconduct. However, neither the trial court nor any officer or employee of the court witnessed the juror sleeping. Erwin failed to show: (1) the juror was asleep as opposed to "listening with his eyes closed"; and (2) the alleged misconduct resulted in prejudice. Under these circumstances, the trial court did not abuse its discretion in declining to question the alleged sleeping juror. See State v. Yant , 376 N.W.2d 487, 489 (Minn.App. 1985) (applying traditional juror misconduct standard to cases involving alleged sleeping jurors), review denied (Minn. Jan. 17, 1986). Because we find Erwin has not established a prima facie case of juror misconduct, we need not discuss the issue of waiver.