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This opinion will be unpublished and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
A19-0658

State of Minnesota,
Respondent,

vs.

Matthew David Smith,
Appellant.

Filed April 27, 2020
Affirmed
Smith, Tracy M., Judge

Kandiyohi County District Court
File No. 34-CR-18-232

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Pres iding Judge; Rodenberg, 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
In this direct appeal from a judgment of conviction for threats of violence, appellant
Matthew David Smith argues that the evidence was insufficient to prove his guilt because

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his conduct did not communicate a threat to commit a crime of violence in the future. We
affirm.
FACTS
At approximately 5:30 p.m. on July 23, 2017 , Smith’s wife called 911, saying that
her husband was in the backyard with a gun and threatening to “blow his head off.” She
also told the operator that Smith had been drinking. Smith did not know that his wife called
the police.
Officers Haycraft and Vazquez of the W illmar Police Department arrived on the
scene in separate squad cars. They had been warned that a suicidal male was sitting in his
back yard, smoking, and that he had a firearm. Both officers parked on the street in front
of Smith’s house. Officer Haycra ft took a direct path to th e back yard, walking past the
north side of the house. He saw Smith sitting in the backyard with his hands between his
legs. Officer Haycraft said, “Excuse me sir.” Smith turned and pointed his handgun at the
officer. Officer Haycraft told Smith to put dow n the gun. At this po int Officer Vazquez,
who had gone around the south side of the hous e to the backyard, also started shouting at
Smith to put the gun down. Smith turned and pointed the gun at Officer Vazquez. Both
officers fired their guns after Smith did not lower his weapon. The entire interaction lasted
four seconds. The officers fired three shots total, but only one shot struck Smith.
At trial, respondent State of Minnesota submitted the following transcript of a
recording of the interaction:
Q2: Excuse me sir.
A: Hey.
Haycraft: Drop the gun.

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Man: Drop it.
Haycraft: Drop it or you will be shot.
Man: Drop it.
Haycraft: Drop it.
Q2: 34 (unintelligible).
Haycraft: Hands up get your hands up.
Man: Oh my God.
Q: We have shots fired at 1726.
Man: Drop it.
Haycraft: I got him covered. I got him covered.
1

Officer Haycraft testified, “I was thinking he was trying to get us to shoot him, and I was
thinking he was going to escal ate his force towards us if we don’t shoot him.” He also
testified, “I shot because I thought if I di dn’t shoot, he was going to shoot me.” Officer
Vazquez testified that he feared for his own life when Smith pointed his gun at him.
After the shots were fired, the officers saw the gun fall out of Smith’s hands.
Officers rendered first aid, a nd Smith was taken by ambulance to the hospital. He was
ultimately flown to a St. Cloud hospital, wh ere he had multiple surgeries to treat his
injuries.
Officer Haycraft examined Smith’s gun an d found that it was loaded with a round
in the chamber. An alcohol test showed that Smith had an alcohol concentration of 0.27.
Smith was charged with two counts of assault in the s econd degree and one count
of threats of violence. Following a three-day trial, the jury found Smith not guilty of the
assault charges but guilty of threats of violence. This appeal follows.

1 Officer Haycraft is the only voice labeled in the exhibit. “Q2” al so refers to Officer
Haycraft, according to his trial testimony. Furt her dialogue indicates that Smith’s words
are marked “A.”

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D E C I S I O N
Smith argues that the eviden ce is insufficient to supp ort the threats-of-violence
conviction because the evidence does not establish that he communicated a threat of future
violence.
When analyzing the sufficien cy of the evidence, appellate courts painstakingly
analyze “whether the ev idence, when viewed in a light most favorabl e to the conviction,
was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440
N.W.2d. 426, 430 (Minn. 1989). We do so under the assumption that the jury believed the
state’s witnesses and disbelieved contrary evidence. State v. Brazil, 906 N.W.2d 274, 279
(Minn. App. 2017), review denied (Minn. Mar. 20, 2018). “We will not disturb the verdict
if the jury, acting with due regard for the presumption of innocence and for the necessity
of overcoming it by proof be yond a reasonable doubt, could reasonably conclude that a
defendant was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465,
476-77 (Minn. 2004) (quotation omitted).
The threats-of-violence statut e provides that “[w]hoever threatens, directly or
indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a
reckless disregard of the risk of causing such terror” is guilty of threats of violence. Minn.
Stat. § 609.713, subd. 1 (2016 ). A threat is a communication of an intention to injure
another by some unlawful act. State v. Smith, 825 N.W.2d 131, 135 (Minn. App. 2012). A
communication is a threat if it “would have a reasonable tendency to create apprehension
that its originator will act according to its tenor.” Id. (quotation omitted). Importantly for
this case, the Minnesota Supreme Court has explained that “[i]t is the future act threatened,

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as well as the underlying act constituting the threat, that the statute is designed to deter and
punish.” State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996).
But Minnesota courts have “never defined a specific amount of time that must pass
before a threat of immediate violence becomes a threat of future violence.” Smith, 825
N.W.2d at 136. In Smith, we affirmed the appellant’s conviction for terroristic threats2 after
he waved two different knives in his cousin’s face while demanding money. Id. at 134-35.
There, the appellant argued that that threat did not extend past the immediate conflict and
that “an appreciable break in time is required before conduct becomes a threat of future
violence.” Id. at 135-36. We disagreed, stating that the appellant’s “conduct constituted a
threat to assault [his cousin] with the knife in the future if [the cousin] did not comply with
his demand for money.” Id. at 136. We explained that that threat was not limited to the
moment appellant made it even though they were currently engaged in conflict. Id. The
appellant’s communication was a prohibited threat even though it threatened violence “in
the near future.” Id.
Here, the facts show that Smith’s wife called 911 about her suicidal husband sitting
in their backyard with a gun. Two officers arrived on the scene. The first officer addressed
him by saying, “Excuse me, sir.” Smith pointed his gun at him, and then pointed his gun at
the second officer. The officers responded by aiming their guns at Smith and shouting
instructions at him to drop his gun. Smith did not drop it until the officers shot him in the
leg. A jury could reasonably find that Smith, by pointing his gun at the officers and refusing

2 “Terroristic threats” is the old name for the current threats-of-violence statute, Minn. Stat.
§ 609.713, subd. 1. See Minn. Stat. § 609.713, subd. 1 (2012).

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to drop it after being directed to so, communi cated a threat to injure the officers by the
unlawful act of shooting them—albeit in th e near future—and that he created the
reasonable apprehension that he would actually shoot them. See Smith, 825 N.W.2d at 135.
His conduct, like waving a knife at another while demanding money, could reasonably be
found to be a threat of future violence.
Smith acknowledges that “perhaps an ar gument could be made that his conduct
manifested a message of his intent to commit” the crime of assault-harm against the police
officers. But, he observes, the jury was instructed to consid er whether he threatened the
crime of assault-fear. He contends that the sufficiency of the evidence must therefore be
analyzed in the framework of assault-fear and that the evidence “did not communicate an
intention to place the officers in fear of immediate harm in the future.” But the sufficiency
of the evidence to support a conviction is not reviewed in the context of the instructions
that the jury receives about th e elements of the offense. Cf. Musacchio v. United States ,
136 S. Ct. 709, 715 (2016) (h olding that sufficiency challenge is assessed against actual
elements of charged crime, not against el ements as erroneously described in jury
instructions). And because the evidence was sufficient to prove that Smith, by his conduct,
threatened to commit a ssault-harm against the police offi cers, his sufficiency challenge
fails.
Affirmed.