This opinion will be unpublished and may not be cited except as provided by Minn.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 A16-0133 State of Minnesota, Appellant,

vs. Harrison William Rund, Respondent. Filed August 8, 2016 Affirmed as modified Stauber, Judge Dissenting, Ross, Judge Dakota County District Court File No. 19HACR14478 Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Hastings, Minnesota (for appellant) Steven T. Grimshaw, Minneapo lis, Minnesota (for respondent) Considered and decided by Ross, Presidin g Judge; Stauber, Judge; and John Smith, Judge. *

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N STAUBER , Judge In this sentencing appeal, the state cha llenges the district court’s imposition of a 365-day stayed sentence for respondent’s te rroristic-threats conviction. The record supports the district court’s determination that the offense was a result of youthful indiscretion and thus less serious than th e typical offense, justifying the one-day downward durational departure from the pres umptive sentence. We affirm the duration of the sentence imposed by the district court but reduce the probationary term to two years because the three-year probationary term imposed by the district court is unauthorized by law. FACTS At approximately 1:30 a. m. on February 4, 2015, respondent Harrison William Rund, then 19 years old, was pu lled over by a state-patrol o fficer and ticketed for driving 68 miles per hour in a posted 60-mile-per-hour zone. Rund later admitted to having a history of problems with the state-patrol offi cer who gave him the ticket, but at the time of the offense Rund had no pr evious criminal offenses. R und went home, “had a little bit to drink,” and started talking to a friend on Twitter. During the Tw itter discussion, Rund got “a little more heated” and “started saying th ings that I shouldn’t have said.” In a single tweeting incident, Rund posted the follo wing threatening statements to his friend3 that hashtagged 1 the St. Paul Police and the St. Paul Police Federation: dude its f*d up im getting so pissed out here literally thinkin about just startin to hunt and kill cops. f*k you st paul police im gonna kill 5 police officers today. im lookin for Zelda boi and whichever trooper pulled me over lastnight gave me a ticket for goin 68 in a 60. f*k the @St.PaulPoliceFdn they d on’t call me the cop killer for no reason. Throw a grenade in the room, watch all the coppers ka-boom. The last tweet references a song lyric and in cludes a photo of St. Paul police officers. The next day, police apprehended Rund as he arrived home after school and work, and he was charged with making terroristic threats, a felony. Against the advice of counsel, Rund gave a complete confession to police, waived a ll trial rights, and entered a straight guilty plea to the charge. At his pl ea hearing, Rund admitted that what he did was wrong, and that he abhorred his conduct. He said, “I don’t th ink people should be able to say these things, and th at’s why, one of the reasons I am here and not taking it to trial and stuff, because I think it was wrong, and people shouldn’t be let off if they say things like that.” He also expressed re morse about frightening any police officers, saying: [I]t wasn’t my intent, you know. I think if you scroll through my old Twitter, I think just a bout everything on there was not serious, you know. Whether I was talking crap to Jose

1 In social media, a hashtag is a word or phrase preceded by a ha sh or pound sign and used to identify messages on a specific topic. In this instance, by hashtagging two police entities, Rund likely believed that the entities would receive notice of his threatening messages, much like a “cc” can be us ed in an e-mail.4 Canseco, you know, I mean, ever ything on there I kind of looked at it as kind of a joke, and I just took it way too far. Rund worked with a psycho logist for about a year and a half after he committed the offense, and at sentencing the district c ourt judge referenced a letter he had received from the psychologist stating that Rund had made significant progress in the management of his mood and no longer needed any treatmen t. Rund also sent a letter of apology to the law-enforcement officers and a letter of remorse to the district court. Rund testified at sentencing that he no longer uses alcohol. Rund called his offense “really stupid,” and said he was “really sorry,” “kn[e]w what [he] did wasn’t right,” and “kn[e]w that it’s a big deal and shouldn’t be taken li ghtly,” but he also said that the offense did not “reflect[] who I am.” At the time of sentencing, Rund was going to school full time and working 15-20 hours per week. Defense counsel moved for a downward durational departure for three identified offense-related reasons: Rund’s remorse, Rund’s intoxication, and the use of social media to commit the crime, th e last of which defense counsel argued made the offense not a “standard terroristic threats case.” Consistent with the sentencing guidelines, the state sought a stayed fe lony sentence of a year and a day, with Rund to serve 60 days in jail as a condition of probation. The district court consider ed offender- and offense-base d arguments at sentencing. The district court judge referred to Rund as a “young person who is going through a very tough time,” but said that the offense had “spa rked you to take a good, hard look at not only your drinking but your ps ychological issues, and you ha ve addressed those.” The5 judge referred to the offense as “less onerous ” because of Rund’s age and mental state, and his lack of intent to “make a planned attack,” and said that imposition of a felony sentence would not be “in the best interests of society.” Over the state’s objection, the district court imposed a stayed 365-day sent ence and placed Rund on probation for three years, one year longer than the probationary term provided for by law. The district court also required Rund to serve a 120-day jail sentence, twice the duration sought by the state. Minn. Stat. § 609.135, subd. 2(c) (2 014) (stating that a probationary term for a gross misdemeanor offense “shall be for not more th an two years”). 2 The state appealed. D E C I S I O N Historically, it is the state’s function to investigate and determine charges for criminal conduct, and it is the district court’ s function to exercise discretion in imposing a sentence. “At one end of t[he] spectrum, bringing charges and plea bargaining, the discretion rests almost entirely with the prosecut or. At the other end of the spectrum, [in] the imposition of the sentence . . ., the discreti on rests almost entirely with the court.” State v. Streiff , 673 N.W.2d 831, 836 (Minn. 2004). The state challenges the district court’ s decision to impose a sentence that constitutes a one-day downwarddurational departure from the presumptive sentence. “The district court must order the presump tive sentence providedin the sentencing

2 The district court judge noted at both the plea and sentencing hearings that the judge’s brother is a career St. Paul police officer. Before imposing sentence, the district court gave Rund a tongue-lashing fo r committing this crime when th ose in the law enforcement community are facing ever-increasing work dangers, including being subject to personal attack.6 guidelines unless substantial and compellin g circumstances warrant a departure.” State v. Pegel , 795 N.W.2d 251, 253 (Mi nn. App. 2011) (quotation omitted). Substantial and compelling circumstances are those that make the case atypical. Taylor v. State , 670 N.W.2d 584, 587 (Minn. 2003). The district court has discretion to decide whether to depart at sentencing, and this court will re verse only if the district court abused its discretion. Pegel , 795 N.W.2d at 253. The presumptive punishment for Rund’s conviction of terroristic threats is a felony sentence. Minn. Stat. § 609.713, subd . 1 (2014) (permitting sentence of “not more than five years”). A “felony” is define d as “a crime for which a sentence of imprisonment for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2 (2014). A “gross misdemeanor” is defined as “any crime which is not a felony or misdemeanor.” Minn. Stat. § 609.02, subd . 4 (2014). But when the district court imposes a gross-misdemeanor sentence on a felo ny offense, the law deems the conviction a gross misdemeanor. Minn. Stat. § 609.13, subd. 1(1) (2014). The imposition of a gross-misdemeanor sentence for a felony conviction with a presumptively stayed sentence is a downward durational departure. State v. Bauerly , 520 N.W.2d 760, 762 (Minn. App. 1994) (ruling that imposition of a 365-day gross-misd emeanor sentence on a felony theft conviction with a presumptive guidelines senten ce of 366 days constituted a downward durational departure), review denied (Minn. Oct. 27, 1994). Sentencing factors specific to the offend er can support a dispositional departure, but they cannot be used to s upport a durational departure. State v. Peter , 825 N.W.2d 126, 130 (Minn. App. 2012) (enumerating offe nder-related factors such as remorse, clean7 record, offender’s youth, family support, an d offender’s ability to obtain education and employment), review denied (Minn. Feb. 27, 2013). Offe nse-related factors, however, can support a durational departure. Id . On a motion for a durational departure, the district court must examine “whether the de fendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.”
State v. Cox , 343 N.W.2d 641, 643 (Minn. 1984). The record demonstrates that the di strict court relied on both offender- and offense-related factors in imposing the durati onal departure. To the extent that the district court weighed Rund’s remorse in de parting, it was improper to do so under the facts presented. Lack of remorse may be used to justify a durational departure, but only if the “remorse is directly re lated to the criminal conduct at issue and made that conduct significantly less serious than the typical conduct underlying the offense of conviction.” State v. Solberg , ___ N.W.2d ___, ___ 20 16 WL 4051620, at *6 (M inn. July 27, 2016). Rund’s remorse for his crime occurred af ter its commission and did not alter the seriousness of the crime itself. Further, the se cond ground argued by defense counsel for departure, Rund’s voluntar y intoxication, does not make him less culpable. See Minn. Sent. Guidelines 2.D.3.a.(3) (2014) (specifically excluding “[t]he voluntary use of intoxicants” as a factor to be considered at sentencing); State v. Cizl , 304 N.W.2d 632, 634 (Minn. 1981) (stating that a defendant’s voluntary intoxication at the time of the offense may not be used to ju stify a downward departure). But “a single mitigating factor may provide a substantial and compelling reason to impose a downward durational sentencing departure if it shows that the defendant’s8 conduct in committing the offens e of conviction was significan tly less serious than that typically involved in the commission of the offense in question.” Solberg , 2016 WL 4051620, at *7. The district court conclude d that the offense was committed in a less serious manner than the typical terroristic-threa ts offense. This is an offense-related factor that was permissible for a durational de parture. On the seriousness of the offense, the sentencing judge said, I don’t think you had the intent to do it. You didn’t have a gun. You weren’t going out to try to search where they live. You weren’t going to make a planned attack. You just wanted to send a tweet out to affect as many people as you can, and that worked. As far as taking steps to follow up, you had no intention. The sentiment expressed by the di strict court is supported by th e fact that some of Rund’s tweets were quotes of inflammatory song lyri cs or were references frequently used in gangster rap. The use of language that e xpresses approval of violence against police, while disturbing in this case, may not indi cate actual intent to “kill a cop” and may merely constitute a protest against police conduct. See, e.g., Rob Hustle ft. Bump, Call the Cops (Youtube 2014); N.W.A., F[--]k tha Police , on Straight Outta Compton (Andre Young, Antoine Carraby 1988). Defense coun sel also argued that terroristic-threats crimes typically involve either making threat s face-to-face or sending them in the mail, both of which demonstrate greater intent and more serious conduct than was shown by Rund. Rund’s conduct, made w ith use of a hashtag on social media, was more like a taunt than a threat. See, e.g., Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) (reversing federal conviction for making thr eatening communications based on offender’s9 statements posted on the F acebook social media website , when the ev idence was insufficient to prove that the offender intended to issue a threat or knew that the communication would be viewed as a threat); Elise Moreau, 10 Types of Internet Trolls You’ll Meet Online http://webtrends.about.com/od/In ternet-Culture/tp/10-Types-ofInternet-Trolls-You ll-Meet-Online.htm (noting the phenomenon of internet “trolling” in which individuals “deliberately tr[y] to disr upt, attack, offend or generally cause trouble within the [internet] commun ity by posting certain comments, photos, videos, GIFs or some other form of online content”). The terroristic threats statute under wh ich Rund was convicted includes a broad range of conduct and a broad range of intent . The crime is defined as “threaten[ing], directly or indirectly, to commit any crim e of violence with purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror.” Minn. Stat. § 609.713, subd. 1. The intent element of the offense include s either intent to do the act or reckless conduct thatresults in the act. Id . The prohibited conduct thus includes direct threats made with the purpose to terrorize as well as indirect threats made recklessly that result in causing terror. Id

. Given the broad spectrum of prohibited con duct and broad range of intent included in the definition of the offense, we cannot conclude that the district court abused its discretion by weighing this cas e against others of its kind and concluding that Rund’s offense was less serious than the typical offense. The district court’s determination of Rund’s lack of intent is clearly supported by the record, including Rund’s testimony that10 he used Twitter jokingly but that his conduct got out of hand in this instance. 3 The district court’s statement that Rund “did not intend to do it” is supportive of its conclusion that Rund’s conduct demonstrated only recklessness and not specific intent to terrorize. Such conduct meets the definition of the crime but is also reflective of an “internet sensibility” of social-media users who rely on alter-egos to express hostile thoughts and invective that are not intended to leave the social-mediaarena. While this conduct might be actionable under the law, it is not as serious as other terroristic-threats offenses. This court has affirmed a district cour t’s exercise of discretion to impose a downward durational departure when the condu ct of the offender did not involve the typical crime for which the offender was sentenced. State v. Bendzula , 675 N.W.2d 920, 924 (Minn. App. 2004). In Bendzula , this court affirmed the district court’s downward durational departure in sentencing on a co ntrolled-substance crime where the offender was less culpable than the typical offender. Id. There, this court stated, “Because the [district] court in this case dealt with the departure issue both deliberatively and thoroughly, and because the court adequately identified considerations favoring its downward departure that were both atypica l and substantial, we must defer to its judgment.” Id. at 923. Similarly here, we uphold the district court’s exercise of its

3 We note that a comment to the Model Pena l Code, upon which the crime of terroristic threats is based, states that the purpose of the code is not “to authorize grave sanctions against the kind of verbal threat which ex presses transitory anger.” 10 U.L.A. Model Penal Code § 211.3 Comments (Tent. Draft 1960). Rund’s conduct shows sufficient intent to establish that he was no t merely joking or being flippant.11 sentencing discretion where the offense is le ss onerous than the typical offense; our ruling is consistent with the equitable goa l of the sentencing guidelines to punish offenders who have committed similar conduct by imposing similar sanctions on them.
Id. at 924 (noting that the sentencing “guidelin es expressly enlarge the [district] court’s discretion when assessing reduced culpabilityand determining a downward departure”). 4 We affirm the district court’s impos ition of a one-day do wnward durational departure from the presumptive sentence but modify Rund’s sentence to reduce the threeyear probationary term to two years, the limit provided for by law. See Minn. Stat. § 609.135, subd. 2(c). Affirmed as modified.

4 The dissent singles out certain facts from the record and focuse s on those facts to support its view that we should reverse Rund’s sentence. Again, it is the district court’s function to exercise discretion at sentencing, a nd it is our function as an appellate court to affirm a sentence that is a proper exercise of that discretion. See State v. Patterson , 796 N.W.2d 516, 533 (Minn. App. 2011) (stating that court of appeals is an “error correcting court”), aff’d 812 N.W.2d 106 (Minn. 2012). Becaus e we conclude that there was a proper basis for a sentencing departure under th e facts as found by the district court, we decline to re-cast those facts. The dissent also chastises us for failing to discuss the

“ ʽ typical’ terroristic threat” case. But the distri ct court differentiated this case, in which it found very little eviden ce of intent and only an indir ect threat, from other types of terroristic threats cases, and co ncluded that the facts of this case made it atypical. We cannot disagree with the method or logic of the district court’s analysis. We also note that there is a dearth of terro ristic-threats cases involving the use of social media, but we are satisfied that the facts of this case are ve ry different from terroris tic-threats cases that involve more intentional conduct or direct threats, such as the cases relied on by the dissent.D-1 ROSS , Judge (dissenting) The district court lacks abso lute sentencing discretion. And here it certainly had no evidence of any “substantial and compelling” offense-related mitigating factor when it chose to shorten Harrison Rund’s sentence, e ffectively diluting from a felony to a gross misdemeanor the seriousness of his conviction for threatening to massacre police officers. This is not a close case. I respectfully dissent. Rund used a mechanism of a social-media program to ensu re that the targets of his threats—police officers and a trooper he had ju st encountered in person—would see them. In five progressively more in flammatory pronouncements, Ru nd first threatened that he was just considering “startin[g] to hunt and k ill cops.” He next punc tuated his anger with an expletive and identified th e target police agency and de clared without qualification, “[I’m] gonna kill 5 police officers today.” Next he specified that he was “lookin for” a particular officer along with “whichever tr ooper pulled [him] over last night [and] gave [him] a ticket for goin 68 in a 60.” Then he ag ain identified the police agency and boasted, “[T]hey don’t call me the cop killer for no reason.” And fina lly he describe d, “Throw a grenade in the room, watch all you coppers kaboom,” this time including a photograph of officers whom he implied he so on would kill. On a different social-media website, Rund posted an image of himself brandishing what appeared to be a revolver. Police, unsurprisingly , mounted an immediate investig ation to identify and locate the self-professed cop killer. They learned the next day that the postings originated from Rund’s South St. Paul home, and they identif ied Rund as the culprit. Multiple officers converged on the home. They confronted and arrested Rund.D-2 At the moment of his arrest—and, as far as the record reveal s, for the first time— Rund began saying that he should no t have made his violent threats. The majority says that “[t] he state challenges the distri ct court’s decision to impose a sentence that constitutes a one-day downwarddurational departure from the presumptive sentence.” That’s a bit soft. The state’s actual position on appeal is this: the state challenges the district court’s decision to shorten the st atutorily presumed prison sentence so as to convert Rund’s felony death-threat convi ction into a mere gross misdemeanor. The supreme court has established the “gen eral rule” that offender-related factors “may be used to justify a dispositional departure,” but only offens e-related factors can support a durational departure. State v. Chaklos , 528 N.W.2d 225, 228 (Minn. 1995). The majority therefore rightly reject s most of the district court’s stated bases for the departure. But I dissent from the majority’s affirming the district cour t’s holding that Rund committed his offense in a less serious manner than the typi cal-terroristic threats offense. The majority cites no cases discussing the “typical” terroris tic threat. Nor does it lo ok comparatively to the statute. Looking at the statute and then at caselaw, I am sure that Rund’s conduct was more serious, not less serious, than the typical case. It justifies no downward departure. The crime of terroristic threats occurs when one “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 (2014). Rund did not make a mere indirect threat, wh ich might, depending on the circumstances, arguably make this case less seri ous. He opted for multiple blunt, direct threats, identifying with particularity and passion that he was “g onna kill 5 police officers today.” And of theD-3 various “crime[s] of violence” that a terrorist might threaten to comm it, like, for example, an assaultive strike in the face, Rund chose the extreme. His threat in stilled in his identified and photographically depicted targets concern about their especially violent impending mass murder, being blown apart with an e xplosive device. How is this committing the crime of terroristic threats in a less serious manner? Isn’t it instead obviously the most serious manner? And Rund was guilty of the crime even after his first or second communication, but, not opting for a minimal a pproach, Rund continued with three more threats, each increasing in in tensity and clarity. He also would have be en guilty of threatening a single police officer, but he threatened an entire, specific group of them. It is clear to me that the manner of Rund’s offense is far, far more serious than the terroristicthreat offense defined by the statute. The caselaw corroborates that Rund’s offense was plainly more serious than the typical case. There can be no question about this. A sampli ng of terroristic-threats cases involving little or no actual phys ical violence confirms my impression that the manner of Rund’s multiple-victim, gren ade-referenced death threat was certainly not less serious than the manner of the usual case. See, e.g. , State v. Stephenson , 361 N.W.2d 844, 845 (Minn. 1985) (affirming conviction when “defendant, angry over being dismissed from a training program at an area vocational-technical school , expressly threatened to kill an assistant director . . . and implicitly threatened to kidnap or cause other harm to the program chairperson”); State v. Smith , 825 N.W.2d 131, 136 (Min n. App. 2012) (affirming conviction when defendan t’s “conduct constituted a threat to assault [one person] with [a] knife”), review denied (Minn. Mar. 19, 2013); State v. Knaeble , 652 N.W.2d 551, 557D-4 (Minn. App. 2002) (affirming terroristic-threat conviction after “[t]he state presented the testimony of two officers that [a man] told them that [his brother] ha d threatened to ‘chop his head off’” during an argument), review denied (Minn. Jan. 21, 2003); State v. Marchand , 410 N.W.2d 912, 914 (Mi nn. App. 1987) (affirming conviction of angry owner of towed car who yelled at th e complainant and a companion, “I know where you live and I know what kind of vehi cles you have, and if I ever see you . . . I’ll run your asses right off the road”), review denied (Minn. Oct. 21, 1987); and cf. State v. Morris , 609 N.W.2d 242, 246 (Minn. App. 2000) (affirming an upward departure on various aggravating factors including multiple victims), review denied (Minn. May 23, 2000). Innumerable unpublished appellate cases also involving less serious threats than Rund’s teach that these published examples are typical. Except for terroristic threat s that also involve serious assaultive behavior or other p hysical confrontations, I have found no case like this one, where the defendant engaged in repeated threats of a mass killing using specific and

extreme means. The majority does not compare Rund’s conduc t to the conduct defined in the statute. Nor does it comparatively review our appellate terroristic-threats cases to see if this one fits the typical-facts mosaic. It just relies on this district court comment about Rund’s “intent”: I don’t think you had the intent to do it. You didn’t have a gun. You weren’t going out to try to search where they live. You weren’t going to make a planned attack. You just wanted to send a tweet out to affect as many people as you can, and that worked. As far as taking steps to fo llow up, you had no intention.D-5 Based on this finding alone, the majority d eems it okay to reduce Rund’s presumptive felony sentence. It reasons that, because of the “broad range of in tent included in the [statutory] definition of th e offense,” the district c ourt can depart downward. But the majority’s flaw is evident: the crime of terrorist ic threats always includes the terrorist’s intent to threaten but rarely th e intent to actually co mmit the threatened act. Like Rund’s crime, it involves only his “purpose to terrori ze another” or his “reckless disregard of the risk of causing such terror. ” Minn. Stat. § 609.713, subd. 1. When the district court told Rund, “You just wanted to send a tweet out to affect as many people as you can, and that worked,” what it meant in context is that Rund wanted to send a tweet

out to terrorize as many people as he could, and that worked. (Emphasis added.) That no evidence exists to show additi onally that Rund planned to assassinate the officers is, thankfully, similar to the typi cal threats cases we see. Rund ’s intentionally terrorizing “as many people as [he could]” by informing them he was going to slaughter them does not make this “less serious” than the t ypical threats case; it makes it much more serious. The majority most surprisingl y opines in conclusion that internet threats on social media “are not intended to leav e the social-media arena” and are therefore “not as serious as other terroristic-threats offens es.” Even the district court did not see it that way. It told Rund, “[P]eople think they can throw out threats . . . and th ey will never be identified, threatening the police during a terrible time that’s going on with law enforcement.” It expressly observed that when po lice face threats on social medi a, “[T]hey take each [threat] seriously,” and, “They don’t know who they are dealing with, and it does make it worse .” (Emphasis added.)D-6 Even without the district court’s observati ons, we know that social media is of course a forum to terrorize. Bullie s use social media to terrorize. See, e.g. , Tatro v. Univ. of Minn. , 800 N.W.2d 811, 817 (Minn. App. 2011) (evaluating student’s Facebook threat “to stab a certain someone in the throat with a trocar”), aff’d on other grounds , 816 N.W.2d 509 (Minn. 2012). Domestic abuser s use social media to terrorize. See, e.g. , State v. Gordon , No. A14-1036, 2015 WL 38 22757, at *1 (Minn. App. June 22, 2015) (“But P.G. remained fearful of Gordon, wh o regularly drove by her home and called her and sent her hostile and threatening text and Facebook messages.”), review denied (Minn. Sept. 15, 2015). Even ISIS uses social media to terrorize! See Matt Payton, Danish Man Faces Terror Charges After Posting ISIS Videos on Facebook , The Independent (May 12, 2016), http://www.independent.co.uk/ news/world/europe/isis-vid eo-facebook-post-danish-mancharged-for-threatening-terror-attacks-a7025471.html. The majority’s peculiar impression that violent threats are somehow less serious when they come by social media is simply not supported by any finding, by the evidence , or by common knowledge and experience. I would reverse. The district court abused its discretion, and this court errs by holding that, so long as one isn’t really “goi ng to make a planned attack” to carry out his apparently credible threat to blow up five spec ific police officers in a specific agency on a specific day, he has a “substantial and compe lling” reason to receive a substantially lower sentence because he has established that his is a less-than-typical threats case. If this multiple-specific-cop-killing threats case really is so exceptionally less serious than the “typical” threats case, what must that case look like?