Friday, September 16, 2016

“Youthful Indiscretion,” Tweets and Terroristic Threats

This post examines a recent opinion from the Court ofAppeals of MinnesotaState v. Rund, 2016 WL 4162925 (2016).  You can, if you are interested, read more about the facts in the case in the news story you can access here.
The Court of Appeals begins its opinion by explaining that
[i]n this sentencing appeal, the state challenges the district court's imposition of a 365–day stayed sentence for respondent's terroristic-threats conviction. The record supports the district court's determination that the offense was a result of youthful indiscretion and thus less serious than the typical offense, justifying the one-day downward durational departure from the presumptive sentence. 
State v. Rund, supra.
The court went on to outline the facts in the case and explain why, and how, Rund came to be charged with making terroristic threats.  State v. Rund, supra.
At approximately 1:30 a.m. on February 4, 2015, respondent Harrison William Rund, then 19 years old, was pulled over by a state-patrol officer 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 officer who gave him the ticket, but at the time of the offense Rund had no previous criminal offenses. Rund went home, `had a little bit to drink,’ and started talking to a friend on Twitter. During the Twitter discussion, Rund got `a little more heated’ and `started saying things that I shouldn't have said.’ In a single tweeting incident, Rund posted the following threatening statements to his friend that hashtagged1 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 don't call me the cop killer for no reason.

Throw a grenade in the room, watch all the coppers ka-boom.
State v. Rund, supra.
The opinion goes on to explain that the
last tweet references a song lyric and includes 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 all trial rights, and entered a straight guilty plea to the charge. At his plea hearing, Rund admitted that what he did was wrong, and that he abhorred his conduct. He said, `I don't think people should be able to say these things, and that'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 remorse 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 about everything on there was not serious, you know. Whether I was talking crap to Jose Canseco, you know, I mean, everything on there I kind of looked at it as kind of a joke, and I just took it way too far.’
State v. Rund, supra.
The opinion also points out that Rund
worked with a psychologist for about a year and a half after he committed the offense, and at sentencing the district court 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 treatment. 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 lightly,’ 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.
State v. Rund, supra.
The court went on to explain that
[d]efense 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, the 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 felony sentence of a year and a day, with Rund to serve 60 days in jail as a condition of probation.

The district court considered offender- and offense-based 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 `sparked you to take a good, hard look at not only your drinking but your psychological issues, and you have addressed those.’ The 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 sentence 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. Minnesota Statutes § 609.135, subd. 2(c) (2014) (stating that a probationary term for a gross misdemeanor offense `shall be for not more than two years’). The state appealed.
State v. Rund, supra.
The court began its analysis of the issues and the law in the case by explaining that
[h]istorically, 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 prosecutor. At the other end of the spectrum, [in] the imposition of the sentence ..., the discretion rests almost entirely with the court.’ State v. Streiff, 673 N.W.2d 831, 836 (Minnesota Supreme Court 2004).

The state challenges the district court's decision to impose a sentence that constitutes a one-day downward durational departure from the presumptive sentence. `The district court must order the presumptive sentence provided in the sentencing guidelines unless substantial and compelling circumstances warrant a departure.’ State v. Pegel, 795 N.W.2d 251, 253 (Minnesota Court of Appeals 2011) (quotation omitted). Substantial and compelling circumstances are those that make the case atypical. Taylor v. State, 670 N.W.2d 584, 587 (Minnesota Supreme Court 2003). The district court has discretion to decide whether to depart at sentencing, and this court will reverse only if the district court abused its discretion. State v. Pegel, supra.
State v. Rund, supra.
The court went on to point out that the
presumptive punishment for Rund's conviction of terroristic threats is a felony sentence. Minnesota Statutes § 609.713, subd. 1 (2014) (permitting sentence of `not more than five years’). A `felony’ is defined as `a crime for which a sentence of imprisonment for more than one year may be imposed.’ Minnesota Statutes § 609.02, subd. 2(2014). A `gross misdemeanor’ is defined as `any crime which is not a felony or misdemeanor.’ Minnesota Statutes § 609.02, subd. 4 (2014). But when the district court imposes a gross-misdemeanor sentence on a felony offense, the law deems the conviction a gross misdemeanor. Minnesota Statutes § 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 (Minnesota Court of Appeals 1994) (ruling that imposition of a 365–day gross-misdemeanor sentence on a felony theft conviction with a presumptive guidelines sentence of 366 days constituted a downward durational departure), review denied (Minnesota Supreme Court Oct. 27, 1994).
State v. Rund, supra.
The Court of Appeals then explained that
[s]entencing factors specific to the offender can support a dispositional departure, but they cannot be used to support a durational departure. State v. Peter, 825 N.W.2d 126, 130 (Minnesota Court of Appeals 2012) (enumerating offender-related factors such as remorse, clean record, offender's youth, family support, and offender's ability to obtain education and employment), review denied (Minnesota Supreme Court Feb. 27, 2013). Offense-related factors, however, can support a durational departure. State v. Peter, supra. On a motion for a durational departure, the district court must examine `whether the defendant'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 (Minnesota Supreme Court 1984).
State v. Rund, supra.
The court went on to explain that the “record” in this case
demonstrates that the district court relied on both offender- and offense-related factors in imposing the durational departure. To the extent that the district court weighed Rund's remorse in departing, 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 related 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 __, 2016 WL 4051620 at *6 (Minnesota Supreme Court July 27, 2016).  Rund's remorse for his crime occurred after its commission and did not alter the seriousness of the crime itself. Further, the second ground argued by defense counsel for departure, Rund's voluntary intoxication, does not make him less culpable. See Minnesota Sentencing 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 (Minnesota Supreme Court1981) (stating that a defendant's voluntary intoxication at the time of the offense may not be used to justify a downward departure).
State v. Rund, supra.
The court went on to explain that,
[b]ut `a single mitigating factor may provide a substantial and compelling reason to impose a downward durational sentencing departure if it shows that the defendant's conduct in committing the offense of conviction was significantly less serious than that typically involved in the commission of the offense in question.’ State v. Solberg, supra. The district court concluded that the offense was committed in a less serious manner than the typical terroristic-threats offense. This is an offense-related factor that was permissible for a durational departure. 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.’
State v. Rund, supra.
The opinion then points out that the
sentiment expressed by the district court is supported by the fact that some of Rund’s tweets were quotes of inflammatory song lyrics or were references frequently used in gangster rap. The use of language that expresses approval of violence against police, while disturbing in this case, may not indicate 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 counsel also argued that terroristic-threats crimes typically involve either making threats 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 with 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 threatening communications based on offender's statements posted on the Facebook social media website, when the evidence 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.ab–Culture/tp/10–Types–of–Internet–TrollsYoull–Meet–Online.htm (noting the phenomenon of internet `trolling’ in which individuals `deliberately tr[y] to disrupt, attack, offend or generally cause trouble within the [internet] community by posting certain comments, photos, videos, GIFs or some other form of online content’).

The terroristic threats statute under which 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 crime of violence with purpose to terrorize another ... or in reckless disregard of the risk of causing such terror.’ Minnesota Statutes § 609.713, subd. 1. The intent element of the offense includes either intent to do the act or reckless conduct that results in the act. Minnesota Statutes § 609.713, subd. 1. 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. Minnesota Statutes § 609.713, subd. 1.
State v. Rund, supra.
The court went on to explain that,
[g]iven the broad spectrum of prohibited conduct 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 case 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 that he used Twitter jokingly but that his conduct got out of hand in this instance. 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-media arena. 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 court's exercise of discretion to impose a downward durational departure when the conduct of the offender did not involve the typical crime for which the offender was sentenced. State v. Bendzula, 675 N.W.2d 920, 924 (Minnesota Court of Appeals 2004). In Bendzula, this court affirmed the district court's downward d urational departure in sentencing on a controlled-substance crime where the offender was less culpable than the typical offender. State v. Bendzula, supra. 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 atypical and substantial, we must defer to its judgment.’ State v. Bendzula, supra.

Similarly here, we uphold the district court's exercise of its sentencing discretion where the offense is less onerous than the typical offense; our ruling is consistent with the equitable goal of the sentencing guidelines to punish offenders who have committed similar conduct by imposing similar sanctions on them. State v. Bendzula, supra (noting that the sentencing `guidelines expressly enlarge the [district] court's discretion when assessing reduced culpability and determining a downward departure’).

We affirm the district court's imposition of a one-day downward durational departure from the presumptive sentence but modify Rund's sentence to reduce the three-year probationary term to two years, the limit provided for by law. See MinnesotaStatutes § 609.135, subd. 2(c).
State v. Rund, supra.
One of the Court of Appeals Judges dissented, explaining, in brief, that
I would reverse. The district court abused its discretion, and this court errs by holding that, so long as one isn't really `going to make a planned attack’ to carry out his apparently credible threat to blow up five specific police officers in a specific agency on a specific day, he has a `substantial and compelling’ 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?
State v. Rund, supra (Ross, J., dissenting) (emphasis in the original). 

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