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This opinion will be unpublished and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
A19-0722

State of Minnesota,
Respondent,

vs.

Adam John Barthel,
Appellant.

Filed March 23, 2020
Affirmed
Smith, John, Judge*

McLeod County District Court
File No. 43-CR-18-1359

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

Michael K. Junge, McLeod County Attorney, Zachary Lyngaas, Assistant County
Attorney, Glencoe, 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; Slieter, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We affirm appellant Adam John Barthel’s conviction for threats of violence because
the district court did not err in instructing the jury on the elements of the offense and did
not abuse its discretion by admitting a portion of the victim’s recorded statement to law
enforcement.
FACTS
Barthel and his longtime girlfriend, T.O., live together and have a son. The evening
of August 19, 2018, Barthel came home drunk and threatened to kill himself and kick T.O.
in the face. She went outside and called 911. She reported his statements to the dispatcher,
saying repeatedly that she was scared of Barthel and “please hurry.” She also expressed
concern for their nearly 10-year-old son, who was still in the apartment with Barthel. While
she was on the phone, Barthel came outside, apparently intending to drive. T.O. told him
he should not drive while drunk, and he threw his keys on the ground and called her “a
f-cking c-nt.” The responding officer arrived within minutes, while T.O. was still on the
911 call.
The officer’s body camera recorded as she followed T.O. up to the apartment to
check on the child. The video shows T.O. telling the officer she was “so worked up,” and
the officer asked, “So what’s going on?” T.O. became visibly upset and told the officer
that Barthel had been drinking and got “angry and violent.” He said that he was going to
slice his throat and kick her face. He kept looking at her phone and said, “B-tch, I’m going
to f-cking kill you if you f-cking call 911.” He “came at” her with a raised fist. T.O. told

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the officer that she was “terrified” of Barthel because he had assaulted her in the past. The
officer asked T.O. if Barthel had hit her, and she said that he did not “physically assault”
her but raised his fist and said, “I’ll do it.” After a time, the officer went to talk to the child.
Barthel was charged with threats of violence and domestic assault (fear). At trial,
T.O. claimed that Barthel merely called her names and denied that he threatened her or that
she was afraid. But she acknowledged that in April 2010 he had physically assaulted her
because she refused to get in the car with him, resulting in a domestic -assault conviction.
The state played a recording of T.O.’s 911 call and, over Barthel’s objection, a portion of
her recorded statement s to police. The jury found Barthel guilty, and the district court
convicted him for threats of violence. This appeal follows.
D E C I S I O N
I. The district court did not err in instructing the jury on the elements of reckless
threats of violence.

A district court has “ considerable latitude in selecting jury instructions and the
language of those instructions,” provided the instructions, as a whole, fairly and adequately
explain the law. State v. Huber, 877 N.W.2d 519, 522 (Minn. 2016). The court must define
the crime charged, explaining the elements of the offense “rather than simply read statutes.”
State v. Ihle , 640 N.W.2d 910, 916 (Minn. 2002). But it need not provide “detailed
definitions of the elements to the crime . . . if the instructions do not mislead the jury or
allow it to speculate over the meaning of the elements.” State v. Davis, 864 N.W.2d 171,
177 (Minn. 2015) (holding no error in failure to define “theft” or “steal”).

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Generally, a defendant forfeits the right to c ontest jury instructions on appeal if he
fails to object at trial. State v. Bauer, 932 N.W.2d 47, 52 (Minn. App. 2019). But we can
review unobjected-to instructions for plain error. Id. The appellant must show (1) the
instructions were in error, (2) the error was plain, and (3) the error affected his substantial
rights. Id. “An error is plain if it is clear or obvious under c urrent law.” State v. Hollins,
765 N.W.2d 125, 133 (Minn. App. 2009) . If the appellant establishes plain error that
effects substantial rights, we must assess whether to remedy the error “to ensure fairness
and the integrity of the judicial proceedings.” Bauer, 932 N.W.2d at 52 (quotation
omitted).
The crime of threats of violence requires proof that the defend ant threatened to
commit a crime of violence “with purpose to terrorize another” or “in a reckless disregard
of the risk of causing such terror or inconvenience.” Minn. Stat. § 609.713, subd. 1 (2018).
The state argued only that Barthel recklessly threat ened violence, and the district court
provided the jury the standard jury instruction for reckless threats of violence:
[T]he defendant made the threat in reckless disregard of
the risk of causing such terror. “To terrorize” means to cause
extreme fear by use of violence or threats.
“In reckless disregard of the risk of causing such terror”
means that the defendant, even though not having the specific
purpose of terrorizing another, recklessly risks the danger that
the statements would be taken as threats by another, and that
they would case extreme fear. It need not be proven that
another actually experienced extreme fear.

See 10 Minnesota Practice, CRIMJIG 13.107 (2015). The district court also instructed the
jury to apply the given definition of defined words and phrases and the “common, ordinary
meaning” of undefined words and phrases.

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Barthel claims plain error in the district court’s failure to instruct the jury on a
definition of “reckless” or “recklessly.” In support of his claim, he points to this court’s
statement that “[r]ecklessness requires deliberate action in disregard of a known,
substantial risk.” State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App. 2009), review denied
(Minn. Nov. 17, 2009). He argues that the instruction the district court gave permitted the
jury to find him guilty not based not on the Bjergum standard but on mere negligence.
Bjergum does not require that the district court define recklessness for the jury .
Rather, Bjergum requires that the jury determine whether the defendant engaged in
deliberate action in disregard of a known, substantial risk. Id. The district court so
instructed the jury, defining the risk that Barthel was alleged to have disregarded—the risk
that his statements would be taken as threats by T. O. and cause her extreme fear. That
instruction did not leave the jury to speculate as to the meaning of “reckless disregard of
the risk of causing such terror.” Accordingly, Barthel has not demonstrated plain error in
the district court’s jury instructions.
II. The district court did not abuse its discretion by admitting at trial a portion of
T.O.’s recorded statement to law enforcement.

Evidentiary rulings “rest within the sound discretion of the district court.” State v.
Guzman, 892 N.W.2d 801, 812 (Minn. 2017). We will not reverse unless the appellant
demonstrates both an abuse of discretion and resulting prejudice. Id.
The rules of evidence generally exclude as hearsay any statement made out of court
and offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c), 802. But there
are numerous exceptions to that rule, including one for excited utterances. Minn. R. Evid.

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803(2). A statement is admissible as an excited utterance if (1) there was “a startling event
or condition ,” (2) the statement relate d to the startling event or condition , and (3) “the
declarant [was] under a sufficient aura of excitement caused by the event or condition to
insure the trustworthiness of the statement.” State v. Daniels, 380 N.W.2d 777, 782 (Minn.
1986) (quotation omitted). When determining whether a “sufficient aura of excitement”
affected the declarant at the time of the statement in question, a court considers “all relevant
factors including the length of time elapsed, the nature of the event, the physical condition
of the declarant, and any possible motive to falsify.” Id. at 782-83.
In weighing the admissibility of the body -camera recording, the district court
received extensive arguments from the parties, weighed preliminary testimony from T.O.,
and reviewed the recording. The court admitted, as an excited utterance, the portion of the
recording from the officer’s arrival until the officer went to talk with the child. In
explaining its ruling, the court emphasized T.O.’s “shaky” and “te ary” demeanor and her
“rapid” and “pressured” speech during that interlude, followed by “a marked change in
demeanor” as she became “much calmer” when the officer went to talk to the child.
Barthel now argues that the district court abused its discretio n by admitting the
statements because “it based its ruling entirely on the single factor of [T.O.’s] physical
demeanor while making the statements.” He contends the court failed to consider “other
relevant factors,” such as her “motives to fabricate,” how much time had passed since the
incident, and the fact that T.O.’s statements were responsive to police questioning rather
than spontaneous. This argument is unavailing.

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The district court did not make express findings on each of the factors Barthel
highlights, but its explanation on the record reflects its reasoned determination that T.O.
was “under a sufficient aura of excitement cause d by that event or condition to ensure the
trustworthiness of that statement.” The court expressly noted that “[a]s a ti me lapse
between the startling event and subsequent statement increases, so does that possibility for
reflection and conscious fabrication.” And it implicitly found no such motive by ruling as
it did despite T.O.’s preliminary testimony that she was not truthful to police about Barthel
threatening her and “exaggerate[ed] a little bit” to get him out of the house and keep him
from harming himself. It also found that so little time had lapsed since the incident that
T.O.’s statements were likely also admiss ible as non-hearsay present-sense impressions.
And while the district court did not address the issue of responsive versus spontaneous
statements, the court did note that the conversation was with an officer responding to a 911
call, essentially “describing the emergency.” The recording itself also confirms that T.O.’s
specific statements about Barthel’s threats and her fear of him were volunteered after the
officer asked, “So what’s going on?” On this record, the district court did not abuse its
discretion by admitting a portion of T.O.’s recorded statement under the excited -utterance
exception.
Affirmed.