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This opinion will be unpublished and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
A18-0284

State of Minnesota,
Respondent,

vs.

Darsche Chaudaun Wharry,
Appellant.

Filed March 4, 2019
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-17-11954

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Brittany D. Lawon n, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Considered and decided by Halbr ooks, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Darsche Chaudaun Wha rry was charged with second-degree assault and
threats of violence following an incident in which he pointed a shotgun at his brother.

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Following a jury trial, he was acquitted of assault but convict ed of making threats of
violence. In this direct appeal, Wharry argues that his conduct did not constitute a threat,
that the evidence was insufficient to prove beyond a reasonable doubt that he intended to
cause fear, and that parts of a police officer’s testimony were erroneously admitted,
requiring reversal. We affirm.
FACTS
In 2017, Wharry was living in a house with his mother, L.M., a nd his half-brother,
S.M. In May of that year, S.M. a nd L.M. had gone out to dinner to celebrate an early
Mother’s Day. When S.M. and L.M. returned from dinner, Wharry g ot into an argument
with them.
S.M. left the room and went upsta irs to his room. Shortly thereafter, he came back
downstairs to talk to his mother. While standing on the stairs, S.M. felt as if someone was
standing behind him and turned around to see Wharry pointing a shotgun at his head.
Wharry imitated the noise of a gun, saying “boom” or “pow.” S.M. told Wharry to “knock
it off” and said that he was calling the police. Wharry told S.M. to “go ahead.” During this
brief conversation, according to S.M., Wharry “pulled [the gun] back away and was just
waving the gun around as if there was a little intimidation goi ng on.” S.M. then hurried
back up to his room, closed the door, and called 911. During th at call, S.M. told the
dispatcher that Wharry had threatened him with the gun. After S.M. went to his room, L.M.
told Wharry to put down the gun, and he did so. Based on the 911 call, a number of officers
arrived at the home. They instructed the three occupants to come outside, and they did. The
police then interviewed S.M. and L.M. and arrested Wharry.

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Wharry was charged with second-deg ree assault—fear. Just before t r i a l t h e
complaint was amended to include a charge of threats of violence.
At trial, there was some eviden ce suggesting that the shotgun may not have been in
working order or that various members of the household may have believed it not to be.
One officer testified that Wharry had told him the firing pin h ad been removed. S.M.
testified that he had been told by both L.M. and his father tha t the gun did not work, but
that he was not personally sure whether it did or not. L.M. tes tified that she did not know
whether the gun worked but that she may have told police that i t did not work. However,
there was no conclusive evidence about whether the shotgun was actually functional.
The jury also heard the testimony of Officer Link, who said th at S.M. had told him
that S.M. “believed he would have died” and “thought that basically there was an imminent
threat to him by having that shotgun pointed at him.” Officer Link was also asked whether
S.M. had described any past violence by Wharry toward S.M. He responded that S.M. had
“mentioned that [Wharry] had been violent toward previous girlfriends.” Defense counsel
moved for a mistrial based on that statement, and the court den ied the motion. Wharry’s
attorney did not request a cautio nary or curative instruction, stating that she believed the
prejudice to Wharry from the statement could not be cured by such an instruction.
The jury found Wharry not gu ilty of second-degree assault and guilty of threats of
violence. The district court convicted Wharry of threats of vio lence, stayed imposition of
a sentence, and placed Wharry on probation for three years. Wharry appeals.

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D E C I S I O N
I. Wharry’s conduct was sufficient to constitute a threat to co mmit a future crime
of violence.

Wharry argues that his actions did not constitute a threat with in the meaning of
Minn. Stat. § 609.713 (2016). He contends that, while pointing a gun could be frightening
in the moment, it does not threaten future violence.
Whether conduct meets the statutory definition of a threat of violence is an issue of
statutory interpretation that we review de novo. State v. Olson , 887 N.W.2d 692, 697
(Minn. App. 2016).
The seminal case construing Minn. Stat. § 609.713 is State v. Schweppe, in which
the Minnesota Supreme Court defi ned “threat” as “a declaration of an intention to injure
another . . . by some unlawful act.” 237 N.W.2d 609, 613 (Minn. 1975). In context, the
communication must “have a reasonable tendency to create apprehension that its originator
will act according to its tenor.” Id. (quotation omitted).
Threats need not be verbal or explicit to fall within the scope of section 609.713. In
State v. Murphy, the defendant engaged in a “campaign of terror” against membe rs of the
criminal justice system. 545 N.W.2d 909, 912-14 (Minn. 1996). A mong other things, he
slashed tires, threw objects through windows, spray-painted houses with messages like “I’ll
be back,” and left mutilated animals near their homes. Id. Even though this conduct was
primarily nonverbal and did not specifically threaten any violence against the residents of
those houses, the supreme court held that the acts were implici t threats to commit actual
violence in the future. Id. at 915-16.

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Wharry’s conduct similarly implie d that he intended to commit v iolence in the
future. The act of miming the us e of a shotgun against S.M., co upled with his instruction
to call the police, suggests that Wharry was willing to use the shotgun—or at least to engage
in some violence of comparable severity—and that S.M. would need the assistance of the
police in order to prevent the impending violence.
Both parties spent a significant proportion of their briefing d iscussing State v.
Brevik, No. A08-0070, 2009 WL 817532 (Minn. App. Mar. 31, 2009), an u npublished
decision of this court. Unpublis hed decisions are not precedent ial but may be persuasive.
Kruse v. Comm’r of Pub. Safety , 906 N.W.2d 554, 559 (Minn. App. 2018). In Brevik, a
husband twice drove a van at his wife in a manner that suggested that he was willing to hit
her with it—he stopped only a few feet short of a collision eac h time. Brevik, 2009 WL
817532, at *1. He was charged w i t h a n d c o n v i c t e d o f b o t h s e c o n d-degree assault and
terroristic threats. 1 Id. On appeal, this court held that his conduct was insufficient t o
constitute a threat because it could not reasonably be interpreted as threatening to commit
a future crime of violence. Id. at *4.
Wharry argues that his own conduct should be interpreted in the same way because
he did not say anything that would convey a future threat. But Wharry’s conduct was not
the same as Brevik’s. Pointing a shotgun and saying “boom” indicates that the person with
the shotgun is currently restrai ning himself but could fire the shotgun if he wanted to. It
foreshadows future violence in a way that driving a car toward a person does not.

1 “Terroristic Threats” was the former title of Minn. Stat. § 609.713, now titled “Threats of
Violence.” See 2015 Minn. Laws Ch. 21, art. 1, § 109, subd. 10, at 234.

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Because of the way it suggested future violence, Wharry’s condu c t h a d “ a
reasonable tendency to create apprehension” that Wharry would shoot S.M. See Schweppe,
237 N.W.2d at 613. Wharry’s co nduct constituted a threat within the meaning of Minn.
Stat. § 609.713.
II. The circumstantial evidence was sufficient to prove that Wh arry had the
requisite intent.

Wharry argues that the state failed to prove beyond a reasonabl e doubt that he had
the necessary intent to support a conviction under Minn. Stat. § 609.713 because the
circumstantial evidence introduced by the state did not rule out the possibility that he was
merely expressing transitory anger.
When considering a claim of insu fficient evidence, appellate co urts conduct “a
painstaking review of the record to determine whether the evide nce and reasonable
inferences drawn therefrom, viewed in a light most favorable to the verdict, were sufficient
to allow the jury to reach its verdict.” State v. Hohenwald, 815 N.W.2d 823, 832 (Minn.
2012) (quotation omitted). We will not disturb the verdict if the factfinder, acting with due
regard for the presumption of innocence and the requirement of proof beyond a reasonable
doubt, could reasonably conclude that the defendant is guilty o f the charged offense. See
Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
If, however, the state relied on ci rcumstantial evidence to prove an element of the
offense, an appellate court applies a heightened standard of review. See State v. Al-Naseer,
788 N.W.2d 469, 475 (Minn. 2010 ). Under this heightened scrutin y, “[c]ircumstantial
evidence must form a complete cha in that, in view of the eviden ce as a whole, leads so

7
directly to the guilt of the def endant as to exclude beyond a r easonable doubt any
reasonable inference other than guilt.” State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).
An appellate court applying this standard of review engages in a two-step process.
Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). First, the appellate court determines
what circumstances were proved. Id. In doing so, the court examines the evidence in the
light most favorable to the verdict and assumes that the jury c redited the testimony of the
state’s witnesses. State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017); State v. Silvernail,
831 N.W.2d 594, 599 (Minn. 2013). Then, based on the circumstan ces proved, the court
asks whether the circumstances p ermit an inference of guilt and whether any hypothesis
inconsistent with the defendant ’s guilt could reasonably be inf erred from the
circumstances. State v. Bahtuoh, 840 N.W.2d 804, 811 (Minn. 2013).
To convict Wharry of threats of violence, the state had to prov e that Wharry acted
either with a purpose to terrify another or with reckless disre gard of causing such terror.
See Minn. Stat. § 609.713, subd. 1. Because the state sought to pro ve this element
circumstantially, the heightened standard applies. See State v. Davis, 656 N.W.2d 900, 905
(Minn. App. 2003) (observing that “[t]he intent element of a cr ime, because it involves a
state of mind, is generally proved circumstantially”), review denied (Minn. May 20, 2003).
We begin with the first step—identifying the circumstances prov ed. All of the
testimony at trial was from the state’s witnesses. Thus, the te stimony is presumed to be
credited, so long as it is consistent with the verdict. See Harris, 895 N.W.2d at 600. The
state’s two eyewitnesses, S.M. and L.M., testified to substanti ally the same events. S.M.

8
argued with Wharry, then went upstairs.2 S.M. came back down the stairs when he heard a
loud conversation between Wharry and L.M. Not long after S.M. d escended, Wharry
pointed the shotgun at S.M.’s head and imitated the sound of a gun firing. S.M. told Wharry
to knock it off and said that he was calling the police; Wharry responded by telling S.M. to
go ahead and call the police. Wharry pulled the gun back but continued to hold it, and S.M.
ran back upstairs to call the police. Wharry then put the gun a way. S.M. testified that he
did not feel scared or nervous but did feel that he urgently ne eded to stop the situation.
S.M. called 911 and told the dispatcher that he had been threatened. L.M. testified that she
was afraid Wharry would hurt S.M. because “a gun can misfire.”
We turn to the second step of the analysis. Wharry does not cha llenge that the
circumstances proved permit an inference of guilt; rather, he argues only that they also are
consistent with the reasonable inference that he acted in trans itory anger and not with the
purpose to terrorize or in reckless disregard of the danger tha t he would do so. Section
609.713 “is not meant to encompass verbal threats expressing tr ansitory anger without
intent to terrorize.” State v. Dick , 638 N.W.2d 486, 492-93 (Minn. App. 2002), review
denied (Minn. Apr. 16, 2002). But a person can commit a threats-of-vi olence offense

2 L.M.’s testimony did not mention that S.M. argued with Wharry, stating only that she and
Wharry had a conversation that w as heated. It is not entirely c lear which version is more
favorable to the verdict. If S.M. and Wharry had been in an arg ument, that suggests that
Wharry would have been angry, whi ch could help provide some sup port for the anger
aspect of his transitory anger ar gument. But that same fact als o suggests that Wharry’s
anger was not transitory, which would negate that defense. Similarly, if S.M. and Wharry
had not been in an argument, then the time frame for the incident is shorter, suggesting that
Wharry’s state of mind was transitory, but the absence of an argument leaves no basis for
inferring that Wharry was angry at S.M. when he pointed the shotgun.

9
without having a specific intent to terrorize, and the general-intent requirement is satisfied
when the perpetrator disregards a known, substantial risk that the threat will terrorize
another. State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App. 2009), review denied (Minn.
Nov. 17, 2009).
Wharry relies on the facts that the incident was brief and unac companied by other
threatening words or b ehavior, that he stopped pointing the gun when told to do so, that
S.M. was calm during the 911 call, and that everyone involved had been told that the gun
did not work. He argues that, t ogether, these facts permit the reasonable inference that he
was expressing transitory anger and lacked the necessary mens rea.
Wharry, however, fails to construe the evidence in the light mo st favorable to the
verdict. See Harris, 895 N.W.2d at 600. S.M. testified to feeling an urgent need t o put a
stop to the situation. He was sufficiently concerned to call 91 1, and he told the dispatcher
he had been threatened. When this evidence is interpreted in the light most favorable to the
verdict, Wharry’s conduct did cause S.M. to feel terrorized. Th ough that terror is not an
element of threats of violence, it is “circumstantial evidence relevant to the element of
intent.” Sykes v. State , 578 N.W.2d 807, 811 (Minn. App. 1998), review denied (Minn.
July 16, 1998); see also State v. Jones , 451 N.W.2d 55, 63 (Minn. App. 1990) (affirming
sufficiency of circumstantial evid ence based, in part, on the f act that the victim felt
threatened), review denied (Minn. Feb. 21, 1990).
W h a r r y ’ s a r g u m e n t t h a t t h e b r e v i t y o f t h e i n c i d e n t s h o w s t h a t he acted out of
transitory anger also fails. When the evidence is viewed in the light most favorable to the
verdict, the argument had been going on for some time before Wh arry threatened S.M.—

10
the incident was not actually brief. And even if it was over qu ickly, the mere fact that an
incident “did not continue for a long period of time” does not suffice to show that a threat
was merely an expression of transitory anger. State v. Smith, 825 N.W.2d 131, 137 (Minn.
App. 2012), review denied (Minn. Mar. 19, 2013).
Finally, the fact that S.M. had been told that the gun did not work does not permit a
reasonable inference that Wharry lacked the requisite mens rea. Because of the potentially
life-threatening harm that can be caused by a functional gun, a person recklessly disregards
the risk of causing terror by intentionally pointing a gun at someone who may believe that
the gun works.3 Even though S.M. had been told that the gun did not work, S.M. was unsure
about whether that was true or not. S.M. also believed that the gun may have been loaded.
Moreover, the circumstances proved do not include anything allo wing this court to infer
what Wharry believed that S.M. believed about the gun. “[Appell ate courts] will not
overturn a conviction based on cir cumstantial evidence on the b asis of mere conjecture.”
Al-Naseer, 788 N.W.2d at 473 (quotation omitted). To conclude from these f a c t s t h a t
Wharry was certain that S.M. believed the gun to be nonfunction al would be conjecture,
not inference. Because the record contains no evidence allowing an inference about what
Wharry believed that S.M. believed about whether the gun worked , we cannot infer that
Wharry did not act in reckless disregard of the risk of causing terror. Because Wharry knew

3 Whether the gun was in fact loaded or functional is irrelevant because the issue is whether
Wharry intended to terrorize S.M. or ignored the risk of doing so and not whether he could
have actually followed through on his threat using that particu lar gun. See State v. Rund ,
896 N.W.2d 527, 533 n.10 (Minn. 2 017) (explaining that, in the typical offense of
recklessly threatening a crime of violence, the offender is unl ikely to intend to carry out
the threat).

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that pointing the gun posed a risk of terrorizing S.M. but did so anyway, his threats could
not reasonably be characterized as arising from transitory anger.
III. The district court did not commit reversible error by admi tting two out-of-
court statements.

Wharry argues that the district court erred by admitting two out-of-court statements
that Officer Link testified were made by S.M. The first was tha t S.M. had told Link that
Wharry had engaged in domestic v iolence toward past girlfriends . The second was that
S.M. had told Link that, when t he shotgun was pointed at him, “ [S.M.] actually believed
that he would have died” and “th ought basically there was an im minent threat to him.”
Wharry argues that S.M.’s statements were inadmissible hearsay.
At trial, Wharry did not object to either of the statements on the grounds that it was
hearsay. We review assertions of unobjected-to error for plain error. Minn. R. Crim. P.
31.02. On plain-error review, the defendant bears the burden to show: “(1) error; (2) that
was plain; and (3) that affected substantial rights.” State v. Strommen , 648 N.W.2d 681,
686 (Minn. 2002). “An error affects substantial rights if there is a reasonable likelihood
that it substantially affected the verdict.” State v. Fraga , 898 N.W.2d 263, 277 (Minn.
2017). The third prong is “a heavy burden.” State v. Griller, 583 N.W.2d 736, 741 (Minn.
1998). Even if the defendant satisfies the first three prongs, we will reverse only if the error
“seriously affects the fairness and integrity of the judicial proceedings.” State v. Little, 851
N.W.2d 878, 884 (Minn. 2014).
Because of the “complexity and subtlety of the operation of the hearsay rule and its
exceptions,” it is difficult to prove that certain testimony was plainly inadmissible hearsay.

12
State v. Manthey, 711 N.W.2d 498, 504 (Minn. 2006). Statements that would be hearsay if
used for one purpose may not be hearsay if admitted for a sligh tly different purpose, and
failure to object at trial prevents the district court from cre ating a record of its decision-
making process. See id. Here, however, it seems that both statements were hearsay—they
repeat S.M.’s out-of-court statements for the purpose of provin g the substance of the
statements. See Minn. R. Evid. 801. On appeal, the state argues that the statem ents fall
within the residual exception to the rule against hearsay. See Minn. R. Evid. 807. But,
because Wharry never objected at trial, the determinations nece ssary to rule on the
applicability of that exception we re never made. As a result, w e cannot hold that the
statements, although hearsay, were plainly inadmissible.
Even if both statements were plai nly not admissible under any h earsay exception,
Wharry has not shown that the errors affected his substantial r ights. Wharry argues that
S.M.’s statement that he “believed . . . he would have died” and that he thought that “there
was an imminent threat to him” affected the outcome at trial be cause it was the strongest
evidence that S.M. actually felt terrorized and thus the strongest circumstantial evidence of
Wharry’s intent. However, intent is shown by inferences from all of the circumstances. See
Harris, 895 N.W.2d at 600 (requiring an appellate court to view the circumstances proved
“as a whole”). S.M.’s statement to Officer Link was just one ci rcumstance. As discussed
in section II, above, the evidence is sufficient to rule out an inference that Wharry lacked
the requisite mens rea, even if S.M.’s statement to Officer Link is excluded. The remaining
circumstances—S.M.’s feeling of urgency, his call to police, an d his statement to the
dispatcher that he had been threatened—made it unreasonable for a jury to conclude that

13
S.M. did not feel threatened by Wh arry’s conduct. Thus, the adm ission of S.M.’s out-of-
court statement that he felt threatened did not affect Wharry’s substantial rights.
Wharry also argues that Officer Link’s testimony regarding S.M. ’s statement that
Wharry had engaged in domestic violence against a past girlfriend affected his substantial
rights because it unfairly prejudiced the jury against him and made it more likely that the
jury would believe that he intended to terrorize S.M. The entirety of Link’s testimony about
S.M.’s statement was: “[S.M.] mentioned that [Wharry] had been violent toward previous
girlfriends.” Inadmissible evidence of prior bad acts can be sufficiently prejudicial to affect
substantial rights. See Strommen , 648 N.W.2d at 687-88. Inadmissible evidence is less
likely to affect substantial rights if it is “not presented in a manner that [gives] it significant
focus.” State v. Jackson, 764 N.W.2d 612, 620 (Minn. App. 2009), review denied (Minn.
July 22, 2009).
Officer Link’s testimony was a single statement, no other witness gave comparable
evidence, and the state did not draw the jury’s attention to th e testimony in its closing
argument or even mention the testimony in any way. Thus, its ma nner of presentation did
not give it “significant focus.” See id. Additionally, though potentially prejudicial, Officer
Link’s testimony does not seem likely to have persuaded the jur y that Wharry threatened
S.M. In comparable situations, even clearly inadmissible character evidence—specifically,
testimony that the defendant was “a violent person”—has been he l d n o t t o a f f e c t a
defendant’s substantial rights. See State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005).
Because of the brief and isolated nature of the statement, any error in the district court’s
response to the testimony did not affect Wharry’s substantial rights.

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In sum, Wharry has not shown that the district court committed reversible plain error
by admitting testimony about S.M.’s two out-of-court statements.
IV. The district court did not abuse its discretion by refusing to declare a mistrial.

Finally, Wharry contends that the district court abused its discretion by not declaring
a mistrial following Officer Link’s testimony regarding S.M.’s statement about Wharry’s
past conduct toward a former girlfriend. Wharry argues that the evidence was irrelevant
and prejudicial and thus not admissible and that a mistrial was required to remedy the
prejudice. The state responds that the evidence was, in fact, a dmissible under Minn. Stat.
§ 634.20 (2018), which allows the admission of “[e]vidence of d omestic conduct by the
accused against . . . household members” unless prejudice from the evidence substantially
outweighs the evidence’s probative value, and that there was therefore no basis for granting
a mistrial.
Unlike his hearsay objections, Wharry raised this objection to the district court by
moving for a mistrial. We review a district court’s refusal to grant a mistrial for an abuse
of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). To justify a mistrial
based on the admission of unfairly prejudicial evidence, there must be “a reasonable
probability that the outcome of the trial would be different” w ithout that evidence.
Manthey, 711 N.W.2d 506.
We analyze this question first, without deciding whether the ev idence was
admissible. For the reasons we cite above in concluding that ad mission of the same
testimony did not affect Wharry’s substantial rights under the plain-error test, we conclude
that the testimony did not justify a mistrial. The challenged testimony was brief—a single

15
sentence out of two days of testimony; it was also isolated—the re was no other evidence
of Wharry’s conduct toward past girlfriends, and it was never m entioned again. Cf. State
v. Benton, 858 N.W.2d 535, 538-39, 541-42 (Minn. 2015) (holding that mor e extensive
relationship evidence did not significantly affect a verdict be cause the evidence was
solicited from a single witness, the evidence was mentioned in the prosecutor’s closing
argument “only once in passing,” and cautionary instructions we re provided). Because
there is no reasonable probability the outcome of the trial wou ld be different without the
testimony, the district court did not abuse its discretion in refusing to grant a mistrial.
Affirmed.