State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1073

State of Minnesota,
Respondent,

vs.

John Willis Netherton,
Appellant.

Filed July 24, 2017
Affirmed in part, reversed in part, and remanded
Kalitowski, Judge∗

Olmsted County District Court
File No. 55-CR-15-8571

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Larkin, Judge; and
Kalitowski, Judge.

∗ Retired judge of the Minnesota Court of Appeals, 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
KALITOWSKI, Judge
Following his convictions of ineligible person in possession of a firearm, two counts
of terroristic threats, and one count of reckless discharge of a firearm, appellant John Willis
Netherton argues that the district court erred by (1) failing to order an overnight recess
during jury deliberations; (2) admitting inadmissible hearsay; and (3) imposing a sentence
on his reckless discharge conviction because it was committed as part of the same
behavioral incident as one of his terroristic threats convictions. We affirm in part, reverse
in part, and remand to the district court to vacate the sentence for reckless discharge and
amend the judgment of conviction accordingly.
D E C I S I O N
I.
At Netherton’s trial, the jury began deliberations at approximately 11:00 a.m. and
returned verdicts around 9:00 p.m. Netherton argues that the district court abused its
discretion by permitting the jury to continue deliberations because the fatigued jury
returned an ill-considered verdict. We disagree.
Generally, “the length of time a jury may be kept deliberating” falls to the discretion
of the district court judge, “but abuse of that discretion requires reversal.” State v. Kelley,
517 N.W.2d 905, 909 (Minn. 1994) (quotation omitted). A district court must not require
or threaten to require a jury to continue deliberations for “an unreasonable length of time
or for unreasonable intervals.” Id. (quotation omitted). The supreme court has expressed
concern “about permitting a jury, particularly in a criminal case, to d eliberate late into the
3
night without a recess,” and stated as a general rule that district courts “should intervene at
an appropriate time and order an overnight recess.” State v. Sanders, 376 N.W.2d 196, 204
(Minn. 1985).
In Sanders, the supreme court referenced the Standards Relating to Juror Use and
Management, Standard 18(d) (1983), noting “[a] jury should not be required to deliberate
after normal working hours unless the trial judge after consultation with counsel determines
that evening or weekend deliberations would not impose an undue hardship upon the jurors
and are required in the interests of justice.” Id. at 204 n.5 (quotation omitted). The
paramount concern is “whether the extension beyond normal working hours will enhance
the rational deliberative process which the jury is charged to perform.” Id. (quotation
omitted). Relevant concerns are the preferences of the jurors and counsel, juror fatigue
and the duration of the deliberations, the potential for the jury to be exposed to improper
influences, the case’s complexity, and whether deliberations would interfere with jurors’
religious practices or beliefs. Id.
Here, at around 8:00 p.m., the district court consulted with the attorneys and
Netherton about the possibility of releasing the jur y for the night. Netherton raised
concerns about negative media influencing the jurors if they were released. Ultimately, the
district court proposed bringing the jury into the courtroom, giving them the option to
continue deliberations, and then letting them decide in private how to proceed. Both
attorneys and Netherton agreed to proceed in this fashion. The jury unanimously voted to
continue deliberations. The court stated that it was inclined to let the jury continue
deliberations for “at least another hour.” Netherton’s attorney stated that if the jury wanted
4
“to stay all night, that’s their business.” The jury returned its verdicts, about one-half hour
after resuming deliberations.
Based on these facts, we cannot conclude that the district court abused its discretion.
The district court consulted with all involved, all agreed to allow deliberations to continue,
and the duration of the deliberations was neither inordinate nor unreasonable. See Kelley,
517 N.W.2d at 909.
II.
Netherton was charged with two counts of making terroristic threats, one count
involving A.K., and the other involving K.C. Netherton argues that the district court
committed prejudicial plain error by allowing inadmissible hearsay relating to his
terroristic threats against A.K. Counsel for Netherton did not object to, and actually
elicited, the challenged statements during cross-examination of a witness, T.K. The
following exchange occurred:
Q: And you try to get [A.K.] to leave with you apparently.
A: Yes. Because she said she was scared to death.
Q: Okay.
A: And she looked scared to death because he said that he’ d
put a gun to her head and told him if she -- told her if she --
Q: Wait just a minute now.
A: Well, you asked so I’m telling you. You want to know why.
Q: Well I --
A: You know, I’m just telling you the truth.
Q: Okay. I’ll let you finish your answer.
A: Thanks.
Q: Okay.
A: He said he would shoot her if he got out of the car.
Q: Okay. So you’re telling the jury now that you saw her --
Mr. Netherton put a gun to [A.K.’s] head.
A: I didn’t say that to the jury, I said that’s what she told me.
Q: Oh. You didn’t witness that yourself.
A: No, I did not.

5
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
trial . . ., offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid.
801(c). Hearsay is generally not admissible, subject to certain exceptions. Minn. R. Evid.
802. “Objections to possibly inadmissible evidence must be made at the time such
evidence is introduced.” State v. Hamilton, 268 N.W.2d 56, 63 (Minn. 1978). “Where an
objection is not made, hearsay evidence will be admitted and has probative force.” Id.
Minnesota courts have noted the importance of objecting to potential hearsay evidence at
trial due to the “complexity and subtlety of the operation of the hearsay rule and its
exceptions,” so that a “full discussion of admissibility [can] be conducted at trial.” State v.
Manthey, 7 11 N.W.2d 498, 504 (Minn. 2006). “Failure to object to the admission of
evidence generally constitutes [forfeiture] of the right to appeal on that basis.” State v.
Vick, 632 N.W.2d 676, 684 (Minn. 2001). However, in the absenc e of an objection, we
may review admission of evidence for plain error. Minn. R. Crim. P. 31.02. The plain-
error standard requires the defendant to show (1) error (2) that was plain and (3) that
affected the defendant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686
(Minn. 2002). “If all three conditions are satisfied, we proceed to determine whether it is
necessary to address the error to ensure the fairness and integrity of the judicial
proceedings.” Manthey, 711 N.W.2d at 504.
Assuming, but not deciding, that the statements here were inadmissible hearsay,
Netherton has failed to satisfy the third prong of the plain-error test, an effect on his
substantial rights, which requires a showing of “prejudice that forms the basis for a
reasonable likelihood the error substantially affected the verdict.” Id. T.K.’s brief and
6
disorganized statements, which were elicited by Netherton’s counsel, were inconsistent
with both the state’s theory of the case and A.K.’s own testimony, as she never testified
that Netherton put a gun to her head or threatened to kill her if she left the vehicle.
During opening statements, the state concentrated on Netherton’s act of shooting
through the floor of the vehicle, pointing the gun at A.K., and telling her to “calm down,”
which the state characterized as an “inferred” threat to kill A.K. if she did not calm down
and “[t]errifying behavior” that would cause A.K. “to feel terrorized.” Moreover, during
closing arguments, the state did not reference the statements now being challenged.
There was sufficient credible evidence to support Netherton’s conviction. A.K.
testified that Netherton took the gun out, pointed it at her and K.C., and stopped in a
driveway, where he fired the gun while both women were in the vehicle. He then drove
off, pointed the gun at A.K., and told her “to calm down in the back seat.” A.K.’s testimony
was both consistent with the state’s theory of the case and sufficient to justify the terroristic
threats conviction. See State v. Smith, 825 N.W.2d 131, 135-36 (Minn. App. 2012)
(concluding that conduct was sufficient to constitute a terroristic threat where individual
waved a knife at his cousin and demanded money because the conduct constituted a threat
of a future assault if the cousin did not comply with the demand for money), review denied
(Minn. Mar. 19, 2013); see also State v. Murphy, 545 N.W.2d 909, 915 (Minn. 1996)
(holding that physical acts alone may constitute terroristic threats). W e cannot conclude
that a reasonable likelihood exists that the admission of T.K.’s statements had a substantial
effect on the jury’s verdict.
7
III.
Netherton argues that the district court erred by imposing a sentence for his reckless
discharge conviction because it was committed as part of the same behavioral incident as
his terroristic threats against K.C. We agree.
Under Minn. Stat. § 609.035, subd. 1 (2016), multiple sentences are prohibited, with
some exceptions, for two or more offenses committed as part of the same behavioral
incident. State v. Rivers, 787 N.W.2d 206, 213 (Minn. App. 2010). When the underlying
facts are undisputed, determining whether multiple offenses arose out of a single behavioral
incident presents a legal question, which this court reviews de novo. Id.
Two different tests are used to determine whether crimes arise from a single
behavioral incident. State v. Bauer, 792 N.W.2d 825, 827-28 (Minn. 2011). Both tests
examine whether there was unity of time and place between the separate crimes. State v.
Johnson, 273 Minn. 394, 404-05, 141 N.W.2d 517, 525 (1966). But the other area of
relevant inquiry differs depending on whether the underlying crimes contain an intent
element. When examining two intentional crimes, we look at whether there was “an effort
to obtain a single criminal objective.” Id. at 404.
Netherton asserts that the crimes of terroristic threats, Minn. Stat. § 609.713, subd. 1
(2016), and reckless discharge of a firearm in a municipality offense, Minn. Stat. § 609.66,
subd. 1a(a)(3) (2016), are intentional for purposes of the single-behavioral-incident test, an
assertion that the state does not contest. We therefore examine whether there was an effort
to obtain a single criminal objective in determining if Netherton’s actions were part of a
single behavioral incident. See State v. Rund, 896 N.W.2d 527, 534 (Minn. 2017) (stating
8
“the terroristic- threats statute includes more than one mens rea: either the purpose of
terrorizing or a reckless disregard of the risk of terrorizing”); State v. Engle, 743 N.W.2d
592, 596 (Minn. 2008) (stating that reckless discharge under Minn. Stat. § 609.66, subd.
1a(a)(3), includes a mental state requirem ent and “requires both intentional conduct and
the creation of a risk”).
Here, the crimes were committed inside Netherton’s vehicle during a limited
window of time. And Netherton had the single objective of terrorizing the two women in
his vehicle. Further, the state concedes that the acts here were part of a single behavioral
incident. See State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000) (discussing state’s
burden to establish offenses were not committed as part of a single behavioral incident).
We therefore conclude that the crimes were part of a single behavioral incident and the
imposition of sentences for both crimes was improper.
As for sentencing, “section 609.035 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). And determining which offense is the most
serious requires appellate courts to “compare the maximum potential sentence for each of
multiple offenses.” State v. St. John, 847 N.W.2d 704, 708 (Minn. App. 2014) (quotation
omitted). Here, the terroristic threats charge carries a higher maximum potential sentence.
See Minn. Stat. §§ 609.713, subd. 1, 609.66, subds. 1a(a)(3), 1a(b)(2). Therefore, the
sentence for the reckless discharge must be vacated, and the judgment of conviction must
be amended accordingly.
Affirmed in part, reversed in part, and remanded.