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This opinion will be unpublished and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
A17-1310

State of Minnesota,
Respondent,

vs.

Kevin Bernard Thompson,
Appellant.

Filed July 9, 2018
Affirmed
Kirk, Judge

Pine County District Court
File Nos. 58-CR-16-922, 58-CR-16-937

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

Reese Frederickson, Pine County Attorney, Michelle R. Skubitz, Assistant County
Attorney, Pine City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Kirk, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
In this direct appeal, appellant argues (1) that his Alford plea to violating a domestic-
abuse no-contact order (DANCO) was inaccurate and must be vacated because he did not

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acknowledge that there was a substantial likelihood that he would be convicted at a trial
and (2) that his guilty plea to terroristic threats must be vacated because the plea colloquy
did not establish that he threatened to commit a crime of violence or that he did so intending
to terrorize the victim or with reckless disregard of terrorizing the victim. We affirm.
FACTS
On September 5, 2016, law enforcement received an anonymous call to perform a
welfare check on a female named A.J. at her residence in Pine County. The caller reported
that appellant Kevin Bernard Thompson had assaulted A.J., his wife, and was in violation
of an active DANCO in place for A.J. against appellant. Deputy Chad Wiener went to the
residence to investigate. He saw a gold Pontiac known to belong to appellant parked in the
driveway, observed appellant enter the residence, and saw appellant leave the residence in
the Pontiac a short time later.
Deputy Wiener initiated a traffic stop of appellant’s vehicle based on suspicion of a
DANCO violation. Deputy Wiener then learned from dispatch that the DANCO allowed
appellant to be in the Pine C ounty residence when A.J. was not present. Meanwhile,
Deputy Timothy Vaagenes went to the residence, where A.J. answered the door and told
Deputy Vaagenes that she lived there. Deputy Wiener placed appellant under arrest for a
DANCO violation.
Appellant was released from custody on September 7. Later that day, appellant had
a physical altercation with an individual named J.S. at another residence in Pine County.
Law enforcement spoke to J.S. at a medical facility where he was being treated for injuries
allegedly sustained during the altercation. J.S. alleged that appellant came to his residence

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in Pine County; accused him of reporting the DANCO violation to police ; punched him
with a closed fist, causing a gash that required stitches; and then initially refused to leave
the property when J.S. requested. J.S. further alleged that appellant followed him into the
residence and said, “I will kill you.” When J.S. asked appellant to leave again, he complied.
Appellant was charged in one file with a felony DANCO violation for the September
5 incident and in a second file with first-degree burglary, terroristic threats, and fifth-degree
assault for the September 7 incide nt. Appellant entered guilty pleas in both files, but the
district court later allowed appellant to withdraw his pleas before sentence was entered. In
May 2017, the parties reached another agreement on both files. In the first file, appellant
entered an Alford plea to an amended gross misdemeanor DANCO violation under Minn.
Stat. § 629.75, subd. 2(c) (2016). In the second file, appellant pleaded guilty to felony
terroristic threats under Minn. Stat. § 609.713, subd. 1 (2016) , and the remaini ng two
charges were dismissed.
On appeal, appellant asks this court to allow him to withdraw his pleas.
D E C I S I O N
I. Appellant’s Alford plea to the DANCO violation was accurate and valid.
Whether a plea is valid presents a question of law that this court reviews de novo.
State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “At any time the court must allow a
defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of
the court that withdrawal is necessary to correct a manifest injustic e.” Minn. R. Crim. P.
15.05, subd. 1. “Manifest injustice occurs if a guilty plea is not accurate, voluntary, and
intelligent, and thus the plea may be withdrawn.” Perkins v. State, 559 N.W.2d 678, 688

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(Minn. 1997). To be accurate, a plea must be established on a proper factual basis. State
v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).
Appellant argues that his Alford plea to the DANCO violation was not accurate and
that he is entitled to withdraw his plea because he did not clearly acknowledge that the
state’s evidence would be sufficient to obtain a conviction if the matter went to a trial .
Appellant does not dispute that his Alford plea was intelligent and voluntary.
An Alford plea may be accepted when the state offers “a strong factual basis for the
plea and the defendant clearly expresse[s] his desire to enter the plea based on his belief
that the [s]tate’s evidence would be sufficient to convict him” at a trial. State v. Theis, 742
N.W.2d 643, 647 (Minn. 2007) (quotation omitted). “[C]areful scrutiny of the factual basis
for the plea is necessary . . . because of the inherent conflict in pleading guilty while
maintaining innocence.” Id. at 648-49. “[T]he court must be able to determine that the
defendant, despite maintaining his innocence, agrees that evidence the [s]tate is likely to
offer at trial is sufficient to convict.” Id. at 649. The preferred practice is to discuss the
factual basis with the defendant on the record and for the defendant to acknowledge “that
the evidence the [s]tate would likely offer against him is sufficient for a jury, applying a
reasonable doubt standard, to find the defendant guilty of the offense.” Id.
Here, before the court accepted appellant’s Alford plea, appellant and his attorney
discussed the Alford-plea process, appellant’s rights, and the proposed plea agreement.
Appellant agreed that he went over the plea agreement “line-by-line,” understood what he
was giving up, and acknowledged that he wanted to enter the Alford plea. Appellant’s

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attorney asked appellant, “ [Do] you believe there is a substantial likelihood that a jury
would find you guilty should you choose to try the case,” to which appellant replied, “Yes.”
The state then reviewed the evidence that it would have presented at a trial through
the testimony of Deputy Weiner and Deputy Vaagenes to establish a factual basis for the
plea. At the end of the state’s summary of the evidence, the prosecutor asked appellant if,
“given all that testimony[,] . . . there is a substantial likelihood the jury would find that you
were guilty of violating th[e DANCO] by having contact with [A.J.] on that date?”
Appellant responded, “Oh, are you talking to me?” and then stated, “Well, I understand
that that’s what the police wrote in his report.”
Because appellant was initially unclear, the district court interjected and again
explained to appellant what was necessary to accept his Alford plea. The court stated that
appellant did not have to agree that the information was accurate, and then asked, “If the
jury heard it and the jury believed it, is there a substantial likelihood that you would be
found guilty? And instead of taking that risk, you want to take this deal?” Appellant
responded with a single “[y]es.”
Appellant argues that this plea colloquy was insufficient to support an accurate
Alford plea because it is unclear whether he responded “yes” to the court’s first question,
to the court’s second question, or to both questions. Appellant concedes that if he
responded “yes” to the first question, then he agreed that there would have been a sufficient
factual basis to support his Alford plea at a trial. But appellant argues that if he answered
“yes” to the second question only, he merely acknowledged that he wanted to avoid a risk
of conviction, and that is not enough to support an Alford plea.

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The state argues that the plea hea ring should be taken as a w hole and the full
interchange viewed in context. We agree. Our review of the entire plea colloquy shows
that appellant discussed his decision to enter an Alford plea on the record with his attorney
and the court and that he acknowledged to his attorney and to the court that the evidence
summarized by the state would be sufficient, if believed, for a jury to find him guilty at a
trial. The court was satisfied that appellant’s single reply of “yes” indicated this
acknowledgement and concurred with appellant “that if [the] evidence were believed by
the jury there is a substantial likelihood that the jury would find [him] guilty of the offense
of violation of a [DANCO].”
Our review of the record indicates that appellant acknowledged during the plea
colloquy that there would likely be a sufficient factual basis to find him guilty if the matter
proceeded to a trial. Accordingly, appellant’s Alford plea to a DANCO violation was
accurate and valid, and he is not entitled to withdraw his plea.
II. Appellant’s guilty plea to felony terroristic threats was accurate and valid.

Appellant argues that there was insufficient evidence in his plea colloquy to support
his plea to felony terroristic threats . Appellant’s challenge is to the accuracy of his plea,
which we review de novo . Raleigh, 778 N.W.2d at 94. Again, to be valid a guilty plea
must be “accurate, voluntary and intelligent,” and to be accurate, a proper factual basis
must be established. Ecker, 524 N.W.2d at 716. “The district court typically satisfies the
factual basis requirement by asking the defendant to express in his own words what
happened.” Raleigh, 778 N.W.2d at 94. “[A] defendant may not withdraw his plea simply

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because the court failed to elicit proper responses if the record contains sufficient evidence
to support the conviction. Id.
To convict appellant of felony terroristic threats, the state had to prove
(1) that appellant made threats toward J.S. (2) to commit a crime of violence (3) with the
purpose of terrorizing J.S., or with reckless disregard of the risk of terrorizing J.S. State v.
Schweppe, 306 Minn. 395, 399, 237 N.W.2d 609, 613 (1975). “The test of whether words
or phrases are harmless or threate ning is the context in which they are used. ” Id. Courts
consider if, given the context in which the statement was made, the statement would “have
a reasonable tendency to create apprehension that its originator will act according to its
tenor.” Id. (quotation omitted).
At the May 2017 plea hearing, appellant acknowledged that he saw J.S. in Pine
County on September 7, 2016 , after he was released from jail and that he got into a fight
with J.S. When asked if he made threats of violence against J.S., appellant replied, “Yes”
and said that he, “Threatened to beat [J.S.] up.” The prosecutor remarked that that was
“not a crime of violence” and explained to the court that appellant allegedly threatened to
kill J.S. Appellant then remarked, “I threatened to kill him, whatever the paper say I did.”
The court could not hear the full statement, so appellant repeated again, “I threatened to
kill him, whatever the papers said that I said that I did, I did.” At that point, t he state
suggested that an Alford plea may be more appropriate.
Instead, the district court inquired of appellant further and asked him if he did not
recall what happened because he was so angry at the time. Appellant said, “No, that’s not
it.” The court then asked appellant if he understood that if J.S. testified “he would tell the

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jury . . . that [ appellant] threatened to kill him. You’re not necessarily - - you’re not
disputing that, it sounds like, today; i s that correct?” Appellant responded, “Yeah,” and
the court replied, “Okay, that’s good enough for me.” Defense counsel indicated that it
had nothing further, and the court found that there was a sufficient factual basis to support
the plea’s accuracy.
Appellant argues that this plea colloquy did not establish a proper factual basis for
a straight guilty plea to terroristic threats, as opposed to an Alford plea, because appellant
did not agree or admit that he threatened to commit an enumerated crime of violence
against J.S., or that he did so with an intent to terrorize J.S. or with reckless disregard of
the risk that J.S. would be terrorized. Appellant adds that even if he threatened to kill J.S.,
J.S. had no reason to believe that threat, or to feel terror from that threat, because the second
time J.S. told appellant to leave the residence, he did.1
To support his argument, appellant cites to State v. Bjergum, in which the supreme
court explained that “‘ I am going to kill you’ is objectively a threat to commit homicide,
but the context may establish something else. . . . [It] might convey an actual intent to kill,
[but] it also may indicate anger, or frustration without an intent to kill, or even humor.”
771 N.W.2d 53, 56 (Minn. App. 2009) , review denied (Minn. Nov. 17, 20 09). Appellant
contends that, if given the opportunity, he could have further explained the context in which
the statement was made.

1 During his plea, appellant testified that the altercation with J.S. took place in Pine County,
but he did not agree that it was at J.S.’s residence. Appellant’s argument on appeal appears
to concede this fact, and there is evidence in the record to support that the altercation took
place at J.S.’s residence in Pine County.

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Our review of the record shows that appellant provided his own explanation for the
physical altercation with J.S. on September 7, 2016 in Pine County during his plea, but he
also stated twice that he “threatened to kill him,” as it was alleged “in the paper.” After
the state expressed its concern about appellant’s responses, the court questioned appellant
further to confirm that appellant was indeed admitting that he threatened to kill J.S. After
questioning appellant, the court was satisfied with appellant’s explanation and accepted his
plea. On this record, there was a s ufficient factual basis to find that appellant threatened
to commit an act of violence against J.S. so as to support his plea to terroristic threats.
There was also a sufficient factual basis to find that appellant’s threat to kill J.S. had
a tendency to create apprehension in J.S. that appellant would act according to his threat or
that the threat was made with a reckless disregard for the risk of terrorizing J.S. so as to
support appellant’s plea. There is evidence in the record that appellant made the threat
after J.S. asked appellant to leave the property, and that instead of doing so, appellant
followed J.S. into the residence and threatened to kill him. There is also evidence in the
record that appellant made the statement after a physical altercation with J.S. that left J.S.
in need of medical attention. Appellant’s argument that he left the residence the second
time J.S. asked does not dispel this context, nor does it establish that appellant’s threat to
J.S. was transitory, made in jest, or merely born out of anger or frustration.
On this record, the factual basis elicited during appellant’s plea colloquy established
the required elements of felony terroristic threats so as to establish the accuracy and validity
of appellant’s guilty plea. Appellant is not entitled to withdraw his plea.
Affirmed.