STATE OF MINNESOTA IN COURT OF APPEALS A15-2072 State of Minnesota, Respondent,

vs. Gregory Allen Olson, Appellant. Filed December 5, 2016 Affirmed in part, reversed in part, and remanded Cleary, Chief Judge St. Louis County District Court File No. 69HI-CR-14-823
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistan t Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Atto rney, Duluth, Minneso ta (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Pres iding Judge; Cleary , Chief Judge; and Jesson, Judge. S Y L L A B U S Statements expressing the mere hope th at another person will be subject to a crime of violence, unaccompanied by additional statements or conduct demonstrating that future crimes of violence could follo w, do not constitute th reats for purposes of establishing the crime of terroristic threats.2 O P I N I O N CLEARY , Chief Judge Appellant Gregory Allen Olso n challenges his conviction for terroristic threats, arguing that his expressions of hope that a st ate trooper would be s hot do not constitute threats for purposes of establishing that cr ime. Because Olson’s statements do not amount to direct or indirect threats of a fu ture crime of violence, they do not constitute threats as a matter of law, and we reve rse Olson’s terroristic-threats conviction. We affirm Olson’s test-refu sal and fourth-degree driving-while-impaired (DWI) convictions, and we remand for resentencing. FACTS On October 27, 2014, Olson and his friend, G.R., met at 10:00 a.m. at a bar and had a couple of drinks before starting thei r trip from Chisago City to Olson’s property in St. Louis County. After meeting, they tr aveled together in one vehicle. Along the way, they stopped at several bars where th ey consumed beer and mixed drinks. G.R. took over driving at one point b ecause he was a “better driver.” Olson had two more “tall” mixed drinks at a restaura nt and bar near Ash Lake where G.R. had a property. Olson and G.R. le ft the restaurant around 6:00 p.m. As they were leaving, Olson urinated on the restaura nt’s deck. Olson had trouble walking to the vehicle, and then he started to dance a “little kind of soft shoe shuffle move” in front of the vehicle’s headlights as G.R. sat in the dr iver’s seat. Olson fe ll over twice, striking his head against rocks. Olson was bleeding pr ofusely but rejected G.R.’s efforts to help him and insisted on leaving.3 They started to drive to G.R.’s property, but Olson told G.R. he wanted to return home to Chisago City. G.R. noticed that Olso n’s demeanor changed after he fell. While G.R. was driving, Olson asked G.R. severa l strange questions, su ch as why G.R. had punched him, and “how come those people jumped me in the parking lot.” Olson became more agitated and repeat edly told G.R. he was going the wro ng way, although G.R. was following a route familiar to Olson. Olson became nonsensical, threatened to shoot G.R. if he did not pull ov er, tried to bite G.R.’s right forearm, and even tried to turn the ignition off while the vehicle was travelling 65-70 mile s an hour. G.R. tried to restrain Olson with his right arm while drivi ng, but Olson tried to punch G.R., touching G.R.’s jaw. G.R. then pulled the car over, a nd Olson took the keys. G.R. thought Olson was too drunk to drive and was afraid for his own safety, so he left the scene and called a friend. At 10:19 p.m., a state trooper observed Ol son parked in the vehicle on the right shoulder of Highway 53 with its tires on the fog line. The trooper stopped because the vehicle was a safety hazard. Approachin g from the passenger-side window, the trooper noticed that Olson was shaking, covered in bl ood, and had a golf-ball-sized lump on his head. Olson said that he had been beaten up, but he denied needing medical attention and did not want the trooper to call an ambulance. Olson reporte d that he was on his way to Forest Lake, but his vehicle faced th e opposite direction. The trooper thought Olson was unable to drive and or dered him to stay in his vehi cle while he obtained gauze for Olson’s head.4 Olson replied, “You know what I would do if I was you is get your gun out and shoot my ass. . . . Because I’m leaving,” and he then fled in his vehicle. The trooper pursued Olson for about one and a half mile s north, stopped Olson’s vehicle, and placed Olson under arrest. While cuffing Olson, th e trooper asked him if he had any weapons, and Olson replied, “Yeah, my pecker. No I don’t have any f---ing weapons . . . . Why don’t you go get a job? . . . Harassing a person is not a f---i ng job.” At that point, the trooper noticed that Olson had urinated on himself, had glassy eyes, had an unsteady gait, and was emitting an odor of alcohol. Olson admitted to drinking four or five beers, and he refused to perform field sobriety tests or take a preliminary br eath test. While in the patrol car, the trooper read Olson the Minnesota implied-consent advisory: TROOPER: Minnesota law requires you to take a test to determine if you are under the influence of alcohol. OLSON: I wouldn’t trust you assholes for nothing. None of you. You are all assholes. I get beat up, I’m hurting, I stopped to make a phone call, and now I’m the dick. Just leave me alone. TROOPER: Refusal to take a test is a crime. OLSON: Yeah, you’re the lo ser, pal, not me, you f---ing butt-head dick.

. . . . TROOPER: Do you wish to consult with an attorney? OLSON: No. I’m sitting here blee ding to death. That’s fine. TROOPER: Will you take the breath test? . . . OLSON: No, you lying cheati ng bastards. No, no. None of you. You’re just a bunch of sh-t is what you are. TROOPER: What is your reason for refusing? OLSON: Because you’re a bunc h of assholes. I don’t trust any of you. I did absolutely nothing wrong. I stopped to make a f---ing phone call, and I’ma bastard, bleeding like a stuck pig, and I’m a dick. You know, I don’t like you people.5 Before the trooper arrived at the hosp ital, Olson made the following statements: It is no wonder people are killi ng you guys. . . . I truly hope that you are one of the cops that gets their head blown off. . . . I truly hope that because I have done nothing wrong. I stopped to make a f---ing phone call because I got beat up. You guys are assholes. At the hospital, Olson became agitated, refu sed medical treatment, and leaned over to the trooper and said, “I hope someone puts a slug in your head, yo u loser.” While the trooper was driving Olson to jail, Olson sa id, “It is no wonder people are shooting you guys all the time. You see it all the tim e. There is going to be a lot more.” The trooper testified that after hearing Olson’s comme nts he was concerned for his safety because he did not know what Ols on was capable of, and he feared that Olson could find out where he lived . On cross-examination, th e trooper admitted that Olson never said that he would do anything to the trooper. Olson was charged with fleeing a peace officer, terroristic threats, 1 test refusal, fourth-degree DWI, obstructing legal process, failure to obey a peac e officer, and fifthdegree assault. In October 2015, Olson went to trial before a jury . The state dismissed the failure-to-obey and obstruction charges. The district court deni ed Olson’s motion to dismiss the terroristic-threats charge at the close of the state’s case. The jury found Olson guilty on all count s. In addition to being sentenced on fleeing a peace officer, terroristic threats, and fifth-degree as sault, Olson received stayed

1 The terroristic-threats headnot e was changed, effective May 11, 2015, to “threats of violence.” 2015 Minn. Laws ch . 21, art. 1, § 109, at 234. The elements of the offense are unchanged. Because the offense here o ccurred prior to the headnote change, the opinion will use terroris tic threats throughout.6 jail time for the test-refusal conviction, and was ordered to serve 90 days in jail for the DWI conviction. Olson now appeals. ISSUES I. Are Olson’s expressions of hope that the trooper would be killed sufficient to sustain his conviction of making terroristic threats? II. Must Olson’s conviction for test refusal be reversed because of Missouri v. McNeely , state and federal due-process guarantees, and the unconstitutionalconditions doctrine? III. Is the evidence su fficient to sustain Olson’s conv iction of fourth-degree driving while impaired? IV. Did the district court err by imposing sentences on multiple o ffenses arising out of a single course of conduct? ANALYSIS I. Olson challenges the sufficiency of the evidence to support his conviction of terroristic threats, arguing that his statem ents did not constitute threats to terrorize another as a matter of law. Alternatively, Olson argues that, ev en if his statements amounted to threats, the state failed to prove that he had a purpose to terrorize. We agree that Olson’s statements did not constitute direct or indirect threats to commit a crime of violence. Because reversal is required for insufficien t evidence, we do not consider Olson’s alternative argument.7 The question of “[w]hether a defendant’s conduct is prohibited by the statute he is charged under is an issue of statutory inte rpretation that this court reviews de novo.” State v. Smith , 825 N.W.2d 131, 136 (M inn. App. 2012) (concludi ng that the defendant’s threat to assault the victim with a knife if he did not comply with the demand for money constituted a threat under the terroristic-threats statute) (citing State v. Colvin , 645 N.W.2d 449, 452 (Minn. 2002)), review denied (Minn. Mar. 19, 2013); see also State v. Hayes , 826 N.W.2d 799, 803 (Minn. 2013) (det ermining that whether the appellant’s conduct met the definition of a drive-by shooting presen ted a question of statutory interpretation that the supreme court reviews de novo). We apply the de novo standard of review to the question of whethe r Olson’s conduct constituted a threat. 2 A person commits the crime of terroristic threats when that person “threatens, directly or indirectly, to commit any crim e of violence with purpose to terrorize another . . . or in a reckless disregard of th e risk of causing such terror.” Minn. Stat. § 609.713, subd. 1 (2014). “A th reat is a declaration of an in tention to inju re another or

2 The state argues that the direct-evidence standard of review for sufficiency-of-theevidence claims applies here be cause there is direct eviden ce of Olson’s threats. The state is correct that Olson’s wo rds constitute direct evidence. State v. Horst , 880 N.W.2d 24, 40 (Minn. 2016) (“Horst’s statement to multiple witnesses, ‘I want him dead,’ was direct evidence of her mens rea.”). But Olson’s first argument is not that there was insufficient evidence to support the terroristic-threats charge; he argues that his statements did not constitute th reats as a matter of law. See State v. Ciurleo , 471 N.W.2d 119, 121 (Minn. App. 1991) (noting pretrial dismissal for lack of probable cause based on legal determination, such as interpretation of statute, is appealable by the state, but a factual dismissal is not). The question of whether a defendant’s conduct falls within the conduct prohibited by the statute is a question of statutory construction that we review de novo. See State v. Murphy , 545 N.W.2d 909, 914 (Minn. 1996) (applying a de novo standard to the question of whether Murphy ’s conduct constituted a threat to commit a crime of violence under the terroristic-threats statute).8 his property by some unlawful act.” State v. Schweppe , 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975). The crime threatened must be one of vi olence, which includes felony assaults and murder. See Minn. Stat. § 609.713, subd. 1 (referencing definition of violent crime in section 609.1095, subdivision 1(d)). A threat can be communicated by words or actions. State v. Franks , 765 N.W.2d 68, 75 (Minn. 2009); Murphy , 545 N.W.2d at 916. Whether a statement is a threat “turns on whether the communication in its context” would reas onably “create apprehension that its originator will act according to its tenor.” Schweppe , 306 Minn. at 399, 237 N. W.2d at 613 (quotations omitted) (concluding stat ements defendant made to juven ile’s friends about wanting to kill juvenile and his moth er constituted threats); see also State v. Bjergum , 771 N.W.2d 53, 56 (Minn. App. 2009) (determining that “the statement, ‘I am going to kill you’ is objectively a threat to commit homicide,” but depending on context, the statement might instead convey frustra tion without intent to kill or even humor), review denied (Minn. Nov. 17, 2009). We agree with Olson that his statements did not constitute direct threats to commit a crime of violence. A threat mu st communicate that the person will act accordingly. Schweppe , 306 Minn. at 399, 237 N.W.2d at 613. For example, in State v. Dick , this court concluded that Dick’s statements to arresting officers that he would “find out where [they] lived” an d kill them was sufficient to c onstitute terroristic threats. 638 N.W.2d 486, 492 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). Similarly, in State v. Jones , this court concluded that Jone s’s statements to correctional officers that when he got out of prison he was going to find them and “f---” them up,9 rape them, or kill them, was sufficient to constitute terroristic threats. 451 N.W.2d 55, 57, 63 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). Unlike these cases, Olson did not say that he would kill the trooper. Olson’s statements conveyed his hope that the troope r would have his head blown off, or that someone would put a slug in the trooper’s he ad, and generally predicted more violence against police officers. But Olson’s statemen ts did not communicate direct threats that Olson would act accordingly. It is a closer question whether Olson’s stat ements conveyed indi rect threats. We are not persuaded that they did. In Murphy , the supreme court considered whether the defendant’s “protracted harassment, vand alism, and terrorism” of several court employees, which included spray painting “I’ ll be back” on property, slashing car tires, displaying dead animal parts, planting fake bombs, and throwing rocks through windows communicated threats that the defendant would act in accordance w ith the tenor of his physical acts. 545 N.W.2d at 9 12-16. The defendant’s conduct in Murphy was sufficient to strongly, but indirectly, co nvey a threat of future crimes of violence. Id. at 916 (explaining that leaving dead animal part s conveys a threat to injure, kill, or commit some other future crime against a person). In contrast, Olson did not engage in e ither verbal or physical conduct that indirectly communicated a threat that he wo uld commit future crimes of violence. The record reflects that Olson was confused, whether from drinking or a head injury, and frustrated with his arrest. A lthough Olson was verbally abus ive and his statements were offensive, those statements did not indire ctly communicate that Olson had the purpose10 to commit those acts. Olson’s statements di d not amount to indire ct threats to commit a future crime of violence. We hold that Olson’s statements comme nting on recent violent conduct towards police and expressing hope th at something similar would ha ppen to the tr ooper in the future do not constitute threat s within the meaning of the te rroristic-threats statute when those statements were unaccompanied by add itional surrounding statements or conduct demonstrating that future serious crimes of violence could follow. Olson’s conviction for terroristic threats must be reversed because the evid ence is legally insufficient. 3 II. For the first time on appeal Olson argues th at his test-refusal conviction must be reversed because the test-refusa l statute is unc onstitutional under Missouri v. McNeely , 133 S. Ct. 1552, 1563 (2013), be cause the statute violates federal and state due-process guarantees, and because the st atute constitutes an unconstitu tional condition. Generally, we only consider issues that the record shows were presen ted to and considered by the district court. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996). Olson forfeited this issue as it was not raised before the district court. See State v. Beaulieu , 859 N.W.2d 275, 279 (Minn. 2015) (clarifying that forfe iture doctrine applies when defendant failed

3 We do not address Olson’s alternative argu ment that the circumstantial evidence is insufficient to prove that Ol son had the purpose to terrori ze the trooper, or acted in reckless disregard of the risk of causing terro r, or his argument that the district court’s omission of certain words in the jury instructions constitu ted plain error. See Burks v. United States , 437 U.S. 1, 18, 98 S. Ct. 2141, 2 150-51 (1978) (concluding that the double-jeopardy clause bars retrial when conviction is reversed because evidence is legally insufficient).11 to object or raise issue in district court, but plain-error doctrine permits an appellate court to consider forfeited errors), cert. denied , 136 S. Ct. 92 (Oct. 5, 2015). However, even if we addressed this ar gument on the merits, Olson’s challenge would fail because the Supreme Court affirmedthe Minnesota Supreme Court’s decision in State v. Bernard , which held that the Fourth Am endment permits warrantless breath tests incident to an arrest for drunk driv ing. 859 N.W.2d 7 62, 767 (Minn. 2015), aff’d sub nom. Birchfield v. North Dakota , 136 S. Ct. 2160, 2184, 2187 (2016). Bernard also held that the test-refusal statute does not offend substantive due process. 859 N.W.2d at 773-74. Furthermore, in light of the ruling in Bernard , this court held that the argument that a warrantless breath test viol ates the unconstitutional-conditions doctrine is without merit because the defendant would not be punish ed under the refusal statute for refusing an unconstitutional search. State v. Bennett , 867 N.W.2d 539, 543 (Minn. App. 2015), review denied (Minn. Oct. 28, 2015), cert. denied , 136 S. Ct. 2542 (June 28, 2016). Olson was lawfully arrested; therefore, any warrantless breath test would have been permitted as a lawful search incide nt to arrest. Olson’s test-refusal conviction is constitutionally valid. III. Olson next argues that the state failed to prove beyond a reasonable doubt that he drove a vehicle while under the influence of alcohol. We disagree. It is a crime for a person to drive a moto r vehicle when “the person is under the influence of alcohol.” Minn. Stat. § 169A.20, subd 1 (2014 ). To prove that Olson was guilty of impaired driving, th e state must show that Ols on “had drunk enough alcohol12 so that . . . [his] ability or capacity to drive was impairedin some way or to some degree.” State v. Shepard , 481 N.W.2d 560, 562 (Minn. 1992). Under the traditional standard of review, we “view the evidence in a light most favorable to the verdict to de termine ‘whether the facts in the record and the legitimate inferences drawn from them would permit th e jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt.’” State v. Salyers , 858 N.W.2d 156, 160 (Minn. 2015) (quoting Davis v. State , 595 N.W.2d 520, 525 (Minn. 1999)). When direct evidence is sufficient to prove a disputed element of the offense, it is unnecessary to apply the circumstan tial-evidence standard. Id. at 160-61. Direct evidence is evidence based on personal knowledge or observation that, if true, proves a fact without inference. Bernhardt v. State , 684 N.W.2d 465, 477 n.11 (Minn. 2004). The traditional standard of review applies here because th e state presented direct evidence of Olson’s alcohol consumption and impaired driving through eyewitness testimony. Here the record shows Olson consumedmultiple alcoholic beverages over the course of the day—from 10:00 a.m. to around 6:00 p.m. Both G.R. and the trooper testified that, based on their observations, th ey believed Olson was too drunk to drive. G.R. took over driving and de scribed Olson’s unusual behavi or at the restaurant just before he fell and hit his head. The troope r detected an odor of alcohol coming from Olson, and observed that Olson was stag gering and had an un steady gait. Olson admitted he had been drinking , and Olson refused to perform field sobriety tests or a preliminary breath test. Based on this reco rd, a jury could reasonably conclude that13 Olson was driving while impaired by alcohol. The evidence is su fficient to support his conviction for this offense. IV. Olson argues that the district court e rred when it imposed sentences for his convictions of both test refusal and fourth -degree DWI because the two offenses arose out of the same behavioral incident. “[I]f a person’s conduct constitutes more th an one offense under the laws of this state, the person may be punished for only one of the offenses.” Mi nn. Stat. § 609.035, subd. 1 (2014). Multiple punishment “refer s not to multiple convictions but multiple sentences and any multiple sentences, includ ing concurrent sentences, are barred if section 609.035 applies.” State v. Bookwalter , 541 N.W.2d 290, 293-94 (Minn. 1995) (quotation omitted). A DWI offense and test-refusal o ffense arise from a single behavioral incident and the driver may only be punished for one of the offenses, pursuant to section 609.035. State v. St. John , 847 N.W.2d 704, 708 (M inn. App. 2014). The state concedes this point and ag rees that remand is appropriate so that the district court can correct Olson’s sentence. Olson argues that, on remand, the district court should sentence and impose a punishment on him for the fourth-degree DWI, but not for the test refusal. The state argues for the opposite result. “[S]ection 60 9.035 contemplates that a defendant will be punished for the ‘most serious ’ of the offenses arising out of a single behavioral incident.” State v. Kebaso , 713 N.W.2d 317, 322 (Minn. 2006). In determining which offense is the most serious, appellate cour ts “compare the maximum potential sentence14 for each of multiple offenses.” St. John , 847 N.W.2d at 708-09 (quotation omitted) (concluding, where maximum potential se ntences for defendant’s two grossmisdemeanor offenses are the same, that thir d-degree DWI is more serious than seconddegree test refusal). A fourth-degree DWI offense is a misdemeanor with a maximum penalty of 90 days imprisonment or a fine of $1,000, or both. Minn. Stat. §§ 169A.27, subd. 2, 609.03(3) (2014). The test-refusal offense is a gross misdemeanor and is the more serious offense because it has a maxi mum sentence of not more than one-year imprisonment or a fine of $3,000, or both. Minn. Stat. §§ 169A.26, subd. 1(b), 609.03(2) (2014). On remand, the district court sh ould vacate the senten ce for the DWI and sentence Olson for the test-refusal offense because it is the more serious crime. D E C I S I O N Olson’s statements did not constitute threat s as a matter of law. Accordingly, we reverse Olson’s conviction for terroristic threat s and direct the district court to vacate his conviction for that offens e. We affirm Olson’s convi ctions for testrefusal and fourth-degree DWI, but we reverse Olson’ s sentence for fourth-degree DWI, and remand for sentencing proceedings not inconsistent with this opinion. Affirmed in part, reversed in part, and remanded.