State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1794

State of Minnesota,
Respondent,

vs.

James Ernest Piere,
Appellant.

Filed December 17, 2018
Affirmed
Reyes, Judge

Carver County District Court
File No. 10-CR-17-40

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

Mark Metz, Carver County Attorne y, Kevin A. Hill, Assistant Cou nty Attorney, Chaska,
Minnesota (for respondent)

Richard L. Swanson, Chaska, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, J udge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from his conviction of threats of violence, appellant argues that (1) the
state failed to prove venue beyond a reasonable doubt; (2) he w as entitled to a transitory-

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anger jury instruction; and (3) he was entitled to a downward d urational departure on his
sentence. We affirm.
FACTS
In January 2017, a deputy with t he Carver County Sherriff’s Off ice transported
appellant James Piere from the D ouglas County Jail in Alexandri a, Minnesota, to the
Carver County Jail in Chaska, Minnesota. During the transport, the deputy asked appellant
a question about his son, which upset him. Appellant then threatened that if T., appellant’s
probation officer since 2015, came to his house, he would kill her and any law-enforcement
officers who came with her. A few days prior to appellant’s threat, T. and law enforcement
had gone to appellant’s home beca use he had failed to meet his probation requirements.
Another deputy from the Carver County Sherriff’s Office communi cated the threat to T.,
and she stated that it caused her to be fearful for her life.
The state charged appellant with threats of violence pursuant t o Minn. Stat.
§ 609.713, subd. 1 (2016) in Carver County. Under the Minnesot a Rules of Criminal
Procedure, an offense that occurs on a conveyance may be prosec uted in any county
traveled through during the conveyance if there is doubt about where the offense was
committed. Minn. R. Crim. P. 24.02, subd. 1.
During trial, the deputy testified that the drive from Douglas County to Carver
County is about two hours and thirty minutes, and appellant’s threat took place within the
first hour of the trip, eastbound on I-94 between Alexandria and St. Cloud, Minnesota, and
“probably near the St. Cloud exits.” Defense counsel argued during closing arguments that

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there was no doubt as to where the threat occurred because the deputy’s testimony
pinpoints Stearns County as the location, making Carver County an improper venue.
The jury returned a guilty verdict , and appellant moved for jud gment of acquittal,
arguing that the evidence was insufficient as a matter of law t o prove venue. Prior to
sentencing, appellant moved the di strict court for a downward d urational departure from
the presumptive sentence, arguing that his conduct was significantly less serious than that
of typical threats of violence cases. The district court denie d both motions. The district
court sentenced appellant to 30 months in prison with the Commissioner of Corrections, a
sentence within the presumptive guidelines. This appeal follows.
D E C I S I O N

I. The evidence is sufficient to prove the venue element of appellant’s conviction.

Appellant argues that the evidence at trial was insufficient to establish doubt as to
where the threat was made, so th e special-venue rule does not a pply, and the case should
not have been prosecuted in Carver County. We disagree.
In considering a claim of insufficient evidence, the reviewing court will not disturb
the verdict if the jury, acting with due regard for the presump tion of innocence and the
requirement of proof beyond a re asonable doubt, could reasonabl y conclude that the
defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.
1988). A reviewing court must assume that “the jury believed t he state’s witnesses and
disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.
1989).

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In order to convict appellant of threats of violence, the state had to prove that he
threatened, directly or indirec tly, to commit any crime of viol e n c e w i t h t h e p u r p o s e o f
terrorizing another or causing such extreme fear in reckless disregard of the risk of causing
terror. Minn. Stat. § 609.713, subd. 1. Because this offense occurred on a conveyance, the
state had to establish that there was doubt as to the location where the threat was made for
it to be properly prosecuted in Carver County. Minn. R. Crim. P. 24.02, subd. 1. The
district court gave the following amended jury instruction relating to venue:
“Third, the defendant’s act took place on or about January 5,
2017, in Carver County. An act is considered to have occurred
in Carver County if the offens e occurs within the state on a
conveyance and doubt exists as to which county the offense
occurred in, and the conveyance traveled through Carver
County in the course of the trip during which the offense was
committed.”

The only evidence relevant to whether or not doubt existed as to where appellant made his
threat was the deputy’s testimony.
Appellant argues that the deputy’ s testimony that the threat wa s made within the
first hour of the trip from Douglas County to Carver County places him at an exact location
in Stearns County based on the speed at which the deputy traveled. But the deputy testified
that the threat was made within the first hour of the trip, not exactly one hour after leaving
the Douglas County Jail. Within the first hour, while travelin g eastbound on I-94 from
Alexandria to St. Cloud, the dep uty would have traveled through Douglas County, Todd
County, and Stearns County. Furth er, the deputy’s statements t hat the threat was made
“probably” near the St. Cloud exits evinces uncertainty. Therefore, based on the deputy’s

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uncertainty as to the location of the threat, it was reasonable for the jury to conclude that
doubt existed as to where the threat was made.
II. The district court did not abuse its discretion by denying appe llant’s request
for a jury instruction on transitory anger.

Appellant argues that the district court erred by not granting his request to instruct
the jury on transitory anger, asserting that this is “clearly a transitory anger case” because
appellant’s threat was a single statement made in a moment of a nger and frustration. We
are not persuaded.
We review a district court’s denial of a defendant’s requested jury instruction for an
abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). A district court has
“considerable latitude” in selecting the language for jury instructions. State v. Gatson, 801
N.W.2d 134, 147 (Minn. 2011). Jury instructions must fairly and adequately describe the
law of the case. State v. Flores , 418 N.W.2d 150, 155 (Minn. 1988). If no abuse of
discretion is shown, there is no reversible error. State v. Kuhnau, 622 N.W.2d 552, 555
(Minn. 2001).
A defendant is entitled to a jury instruction on his or her the ory of the case if there
is evidence to support it. State v. Persitz, 518 N.W.2d 843, 848 (Minn. 1994). But this
court has previously concluded that failing to include a transi tory-anger instruction is not
reversible error when the distric t court properly instructed th e jury on the elements of
terroristic threats, including th e definition of intent and rec klessness, and permitted the
defendant’s counsel to argue the transitory-anger defense. State v. Dick, 638 N.W.2d 486,
493 (Minn. App. 2002) (citing State v. Lavastida, 366 N.W.2d 677, 680 (Minn. App. 1985)

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(holding jury instructions for terroristic threats were proper even though district court failed
to instruct on transitory anger)), review denied (Minn. Apr. 16, 2002).
The district court denied appella nt’s request for a transitory- anger instruction
because the standard jury instruction on threats of violence was sufficient, based on State
v. Dick. The district court instructed the jury on the elements of threats of violence, and it
defined both intent and recklessness to the jury. And the dist rict court allowed defense
counsel to argue appellant’s theory of transitory anger in his closing argument, which he
did. We discern no abuse of discretion by the district court.
III. The district court did not abuse its discretion by denying appe llant’s motion
for a downward durational departure.

Appellant argues that the distric t court abused its discretion by not granting his
motion for a downward durational departure because (1) he lacked substantial capacity for
judgment; (2) he was less culpable because he was in custody and unable to carry out the
threat; and (3) he showed remorse. We are not persuaded.
This court reviews a district court’s decision not to depart fr om the sentencing
guidelines for an abuse of discretion. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
A district court must sentence a defendant “within the applicab le range unless there exist
identifiable, substantial, and co mpelling circumstances to supp ort a departure.” Minn.
Sent. Guidelines 2.D.1 (2016). Substantial and compelling circ umstances supporting a
durational departure are those th at demonstrate that the defend ant’s conduct was
significantly more or less serious than that typically involved in the commission of the
offense in question. State v. Rund, 896 N.W.2d 527, 532 (Minn. 2017).

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“Although the [district] court is required to give reasons for departure, an
explanation is not required when the court considers reasons fo r departure but elects to
impose the presumptive sentence.” State v. Van Ruler , 378 N.W.2d 77, 80 (Minn. App.
1985). We will not interfere with “the sentencing court’s exercise of discretion, as long as
the record shows the sentencing court carefully evaluated all the testimony and information
presented before making a determination.” Id. at 81. We will reverse a district court’s
refusal to depart only in a “rare” case. State v. Walker, 913 N.W.2d 463, 468 (Minn. App.
2018). To maintain uniformity a nd proportionality in sentencin g, departures from the
guidelines sentence are discouraged. Rund, 896 N.W.2d at 532.
Because appellant had six criminal-history points, the district court found that the
presumptive sentence was between 26 and 36 months and sentenced him to 30 months.
We will address each of appellant’s arguments in turn.
A. State of mind

Appellant argues that a downward departure was required because he lacked
substantial capacity for judgment when he made the threat becau se he suffers from major
depressive disorder, anxiety disorder, post-traumatic-stress di sorder, and attention-deficit
disorder. We disagree.
A district court may depart from the sentencing guidelines when “[t]he offender,
because of physical or mental impairment, lacked substantial capacity for judgment when
the offense was committed.” Min n. Sent. Guidelines 2.D.3.a (3) (2016). In order for
mental illness to constitute a mitigating factor in sentencing, impairment “must be
‘extreme’ to the point that it de prives the defendant of contro l over his actions.” State v.

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McLaughlin, 725 N.W.2d 703, 716 (Minn. 2007) (citing State v. Wilson, 539 N.W.2d 241,
247 (Minn. 1995)) (concluding McLaughlin’s mental health appeared to be “insufficiently
extreme” to be a mitigating factor when evidence lacking that M cLaughlin frequently
suffered delusions or engaged in wholly irrational behavior). In State v. Martinson, this
court upheld a downward durational departure when the record pr ovided ample evidence
that Martinson suffered from paranoid schizophrenia at the time of the incident, his illness
manifested itself in delusiona l paranoia, and caused Martinson to engage in “wholly
irrational” behavior before, during, and after the incident. 671 N.W.2d 887, 891-92 (Minn.
App. 2003)
This case is more analogous to McLaughlin than Martinson. We have carefully
reviewed the presentence investigation and conclude that appellant’s mental-health issues
do not appear to be sufficiently extreme so as to constitute a mitigating factor.
Moreover, even if a mitigating factor is present, the district court is not obligated to
impose a shorter sentence than a presumptive sentence. State v. Wall, 343 N.W.2d 22, 25
(Minn. 1984). Appellant received a presumptive sentence, and even if he had e stablished
that he lacked substantial capaci ty for judgment, the district court would not have been
obligated to depart from the guidelines.
B. Inability to immediately carry out the threat

Appellant argues that the context in which he made the threat i s relevant, arguing
that he was less culpable for the threat because he was in the back of a police car and unable
to immediately carry out the threat. We disagree.

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In State v. Rund, the supreme court analyzed whether threats made on social media
required a downward departure because they may have been “more exaggerated or
extravagant” and less likely to be carried out. 896 N.W.2d at 535. The supreme court
concluded that, even if a threat was made in a context in which it was less likely to be
carried out, this does not “support a categorical rule” that such threats were “somehow less
serious than other threats.” Id. Rather, an analysis of the totality of the circumstances
surrounding the threat is required to determine if it was more or less serious than the typical
offense. Id.
Here, the district court considered the context in which the th r e a t w a s m a d e i n
deciding not to depart from the guidelines and found that T. wa s “objectively terrified.”
The record supports the district court’s determination. Appellant made the threat just a few
days after T. and law enforcemen t went to appellant’s home. Ap pellant’s inability to
immediately carry out his threat does not render it less serious than the typical offense. The
district court considered the testimony and information before sentencing, and therefore,
we will not interfere with its exercise of discretion in imposing a presumptive sentence.
C. Remorse

Lastly, appellant argues that his remorse required a downward durational departure.
We are not persuaded.
While a defendant’s remorse does not generally relate to a deci sion to reduce the
length of a sentence, in some circumstances, a defendant’s remorse can relate back and be
considered as evidence of remediation, making the conduct signi ficantly less serious than
the typical conduct underlying the offense. Rund, 896 N.W.2d at 535. But showing that

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remorse is relevant to a durational departure “will not be an e asy task” because the
defendant must show that “his demonstrated remorse is directly related to the criminal
conduct at issue and made that conduct significantly less serious than the typical case.” Id.
Here, appellant has not cited, nor does the record reflect, any examples of remorse
that are directly related to th e criminal conduct and that woul d make the conduct less
serious than the typical case.
In sum, the record supports the district court’s findings that substantial and
compelling circumstances were not present. The district court carefully considered the
testimony and information before sentencing appellant. Moreover, even if the district court
had found substantial and compelling circumstances, it was not required to depart from the
guidelines.
Affirmed.