State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1442

State of Minnesota,
Respondent,

vs.

David Deluna,
Appellant.

Filed September 20, 2021
Affirmed
Reilly, Judge

Faribault County District Court
File No. 22-CR-17-745

Keith Ellison, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Cameron Davis, Faribault County Attorney, Blue Earth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Segal, Chief Judge; and Reilly,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
After a confrontation, appellant told the victims that he would return to their home
with a gun and shoot them. The state charge d appellant with threats of violence and two
counts of burglary. The jury found appellant guilty of threats of violence but acquitted him

2
of the burglary charges. In this appeal, appellant argues that the evidence was not sufficient
for the jury to find that he had the requisite intent to support his thre ats-of-violence
conviction. We affirm.
FACTS
Around 1:00 a.m. on November 7, 2017 , officers responded to a 911 call to
investigate a reported assault at a home that potentially involved a fi rearm. Respondent
State of Minnesota later charged appellant with threats of violence, Minn. Stat. § 609.713,
subd. 1 (2016), and two counts of first-degree burglary, Minn. Stat. § 609.582, subd. 1(a),
(c) (2016). At a jury trial, the state called five witnesses: J.C., J.C.’s girlfriend, the daughter
of J.C.’s girlfriend (daughter), Deputy Davis, and Deputy Bonin. Appellant testified on his
own behalf and called two witnesses: appellant’s brother and his brother’s girlfriend. The
witnesses provided conflicting testimony at trial.
In 2016, J.C. bought a car for $1,000 from his neighbor, appellant’s brother, which
broke down while J.C. was driving it home. The car and its mechanical issues spurred an
ongoing dispute between J.C. an d appellant’s brother. J.C. testified that he sometimes
stopped by appellant’s brother’s home to “ask if [appellant’s brother] was around . . . and
ask about [his] money.” Once, J.C. wore a skull mask. Another time, while wearing brass
knuckles, J.C. approached appellant’s brother at a gas station and threatened him.
In November 2017, appellant’s brother a nd his brother’s girlfriend were walking
their two dogs when they ran into J.C. The couple testified that J.C. approached them,
asked appellant’s brother for his money back, and then told appellant’s brother to come to
his home and to “[b]ring [his] f-cking money. ” J.C., however, testified that appellant’s

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brother yelled at him and tried to start a fight, but he just walked away and did not invite
appellant’s brother to his home. J.C. stated that he coul d smell alcohol on appellant’s
brother at the time and believed he was intoxicated. Deputy Davis testified that while he
was on patrol, he witnessed a conversation be tween J.C. and appellant’s brother. Deputy
Davis noticed nothing out of the ordinary that caused him alarm or suspicion.
Later that evening, appellant’s brother aske d appellant to walk with him to J.C.’s
home so that appellant’s brother could “jus t . . . talk to [J.C.]” and get everything
“straighten[ed] out.” Appellant was not involved in the car sale and did not know J.C., but
walked with his brother to J. C.’s home around 1:00 a.m. As they walked, appellant’s
brother’s dogs followed along.
Appellant and his brother testified that when they arrived at J.C.’s home, appellant’s
brother knocked on the door, waited, and as so on as the door opened, J.C. hit appellant’s
brother in the face with a machete. J.C., however, testified that he heard someone pounding
and kicking on his door and tried to hold it shut while he yelled “[g]et out of here” and
“I’ve got kids here.” As J.C. was holding the door shut, he looked for the baseball bat that
he usually kept near the door, but because he could not find it, he grabbed a machete that
he had hanging on the coat hanger “to defend [himself], because [he] knew the door was
coming in eventually.” When the door “came flying open,” J.C. saw appellant and
appellant’s brother and as they started to co me towards J.C., he swung at them with the
machete “a couple times.”
J.C. hit appellant’s brother with the machete (1) in his face twice, separating his ear
from his head and causing him to lose an eye; and (2) on his arm as he tried to block the

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machete. J.C. also hit appella nt with the machete in the face and on the side of his head.
The machete separated appellant’s scalp from hi s skull and he had to hold onto it to keep
it in place. After J.C. hit appellant and his brother with the machete “a couple times,” he
testified that appellant’s brother said something to his dogs in Spanish that caused them to
come “charging” at J.C. J.C.’s girlfriend te stified that she saw one of the dogs lunge at
J.C. One dog bit J.C.’s hand leaving a faint mark. In response, J.C. hit both dogs with his
machete, severely wounding them and ultimately leading to their being euthanized.
About half-way through this incident daughter awoke, came downstairs, picked up
her five-year-old brother from the couch near the front door where he was sleeping, and
took him upstairs. After daughter brought her brother upstairs, she came back down and
saw “blood all over the floor,” heard her mo m “in the living room screaming,” and saw
appellant and appellant’s brother outside. J.C. testifie d that after repeatedly telling
appellant and appellant’s brother to get out of his home, they “turned around and left.”
J.C. testified that through out this entire incident neith er appellant nor appellant’s
brother hit him. J.C.’s girlfriend testified th at at one point, appella nt punched her in the
face twice with a closed fist, but that the punches did not leave any marks on her face.
Daughter reported to Deputy Bo nin that one of the men in he r home kicked her at some
point.
J.C.’s girlfriend testified that as appella nt and his brother were outside the home
walking away, appellant yelled “that he was going to come back with a gun and shoot us
and [that] he was going to come back with his family and shoot us.” J.C. testified that as
appellant was leaving, he said, “I’ll be back with my gun.” Both J.C. and J.C.’s girlfriend

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testified that they believed a ppellant would come back with a gun, and J.C. testified that
he was scared. Appellant, however, testified that he does not own a gun and said nothing
threatening to J.C. or his family as he left their home.
After appellant and his brother left the home, J.C.’s girlfriend called 911 and stated
that someone had threatened to come back to her home with a gun. Meanwhile, appellant
and appellant’s brother walked home and arrived “covered in blood.” Appellant’s brother’s
girlfriend put them in a car and their mother drove them to the hospital. About 15 minutes
after J.C.’s girlfriend called 911, officers arrived at J.C.’s home.
Upon arriving, the officers observed “tons of blood” on the exterior and interior
steps, the door, in the entry wa y, and in the living room. Deputy Davis testified that the
door to J.C.’s home “appeared beat up,” to “have damage on it,” and was dented near the
dead bolt and below the handle. He also testified that J.C. reported appellant and
appellant’s brother tried to break into his home, J.C. “wanted to protect himself, [and] his
family,” and that he used a machete agains t appellant, appellant’s brother, and the two
dogs. After interviewing J.C.’s girlfriend and daughter, Deputy Bonin followed a trail of
blood to appellant’s brother’s home and located the two fatally injured dogs. Deputy Davis
photographed the home, took J.C.’s statement, and then went to the emergency room and
collected the clothing from both appellant and appellant’s brother.
After concluding its inves tigation, the state charged appellant with threats of
violence and two counts of burglary. The jury later found appellant guilty of threats of
violence, but acquitted him of the burglary charges after a tw o-day jury trial in January
2020. The district court sentenced appellant to 21 months in prison.

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This appeal followed.
DECISION
Appellant argues that we must reverse his conviction for threats of violence because
the evidence was insufficient. A defendant is guilty of threats of violence if he
(1) threatened, directly or indirectly, to commit a crime of violence, and (2) acted either (a)
with a purpose to terrorize another, or (b) in reckless disregard of the risk of causing such
terror. Minn. Stat. § 609.713, subd. 1. A “threat” is a declaration of an intention to injure
another by some unlawful act. State v. Schweppe , 237 N.W.2d 609, 613 (Minn. 1975).
The test for whether a communication is harmless or threatening is whether, in context, the
communication would re asonably create apprehension th at its originator will act
accordingly. Id. Under the second element of the threats-of-violence statute, “purpose”
means “aim, objective, or intention” and “te rrorize” means “to cause extreme fear by use
of violence or threats.” State v. Smith, 825 N.W.2d 131, 136 (Minn. App. 2012) (quotation
omitted), rev. denied (Minn. Mar. 19, 2013). A defendant acts in reckless disregard of the
risk of causing such terror when he takes “d eliberate action in disregard of a known,
substantial risk” of threatening another. State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App.
2009), rev. denied (Minn. Nov. 17, 2009).
To evaluate the sufficiency of the evidence, “appellate courts carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them would
permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of wh ich he was convicted.” State v. Griffin, 887 N.W.2d 257, 263
(Minn. 2016). We review the evidence “in the light most favorable to the conviction” and

7
“assume the jury believed the State’s witn esses and disbelieved any evidence to the
contrary.” State v. Ortega, 813 N.W.2d 86, 100 (Minn. 20 12) (quotation omitted). And
we “will not disturb the verdict if the jury, acting with due re gard for the presumption of
innocence and the requirement of proof bey ond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” Id.
Because intent involves a state of mind, it is generally established circumstantially.
State v. Davis, 656 N.W.2d 900, 905 (Minn. App. 2003), rev. denied (Minn. May 20, 2003).
If the state’s evidence on one or more elements of a charged offense consists solely of
circumstantial evidence, as it does here, we apply a heightened standard of review. State
v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013). Circumstantial evidence is “evidence
from which the [jury] can infer whether the facts in dispute existed or did not exist.” State
v. Harris, 895 N.W.2d 592, 599 (Mi nn. 2017) (quotation omitted). Direct evidence, by
contrast, “is evidence that is based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption.” Id. (quotation omitted).
In a circumstantial-evidence case, we apply a two-step test to determine whether the
evidence was sufficient. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we
identify the circumstances proved. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010).
In identifying the circumstances proved, we assume “that th e jury resolved any factual
disputes in a manner that is consistent with the jury’s verdict.” Id. “This is especially true
where resolution of the case depends on c onflicting testimony, because weighing the
credibility of witnesses is the exclusive function of the jury.” State v. Pieschke , 295
N.W.2d 580, 584 (Minn. 1980). Second, we independently examine “the reasonableness

8
of all inferences that might be drawn from the circumstances proved,” including
“inferences consistent with a hypothesis other than guilt.” Andersen, 784 N.W.2d at 329
(citation omitted). In so doing, we consider the evidence as a whole and do not examine
any piece of evidence in isolation. Id. at 332.
Appellant argues that the state did not prove beyond a reasonable doubt that he
intended to threaten J.C., and thus the second element of the threats-of-violence statute is
not satisfied. We begin by identif ying the circumstances proved. Id. at 329. The
circumstances proved that support the verdict show that after an ongoing dispute over a
car, and without invitation, appellant accompanied his brother to J.C.’s home at 1:00 a.m.
Upon arriving at J.C.’s home, appellant and appellant’s brother ki cked and pounded on
J.C.’s door and eventually broke down the do or. As appellant a nd appellant’s brother
began to come towards J.C., J.C. swung a mach ete at them in defense, severely injuring
both brothers and their dogs. During the altercation, appellant punched J.C.’s girlfriend in
the face, someone kicked daughter, and a dog of appellant’s brother lunged at and bit J.C.
Once appellant and appellant’s brother left J. C.’s home, appellant yelled that he would
come back, with his gun, and would shoot up J.C.’s family. J.C.’s girlfriend called 911
and reported that appellant had threatened to come back to her home with a gun. Both J.C.
and J.C.’s girlfriend believed that appellant would return to their home with a gun and J.C.
was scared.
The next step requires us to evaluate the “reasonableness of all inferences that might
be drawn from the circumstances proved” including those that are inconsistent with guilt.
Id. (citation omitted). Appellant argues that the circumstances proved show one reasonable

9
inference inconsistent with gu ilt: that he “was expressing his anger in colorful terms and
did not intend for his words to be taken seriously.” We disagree. The evidence presented
at trial supports the jury’s de termination that appellant intend ed to terrorize J.C. and his
family.
The state can prove a defendant’s intent to terrorize another through circumstantial
evidence “by drawing inferences from the defendant’s words a nd actions in light of the
totality of the circumstances.” Smith, 825 N.W.2d at 136 (quo tation omitted). And the
“victim’s reaction to a threat is circumstantial evidence of intent.” Id. Appellant yelled to
J.C. and his family that he would return with a gun and “shoot [them] up” after he kicked
in J.C.’s door in the middle of the night an d assaulted his family over an ongoing dispute
about a car. J.C.’s girlfriend responded by calling 911 and telling the dispatcher that
someone had threatened to come back to he r home with a gun. Both J.C. and J.C.’s
girlfriend testified that they thought appellant wo uld return with a gun. J.C. testified that
he was scared. Under these circumstances, it would not be reasonable to infer that by
yelling that he would return w ith a gun and shoot up J.C.’s family, after he broke down
their door in the middle of the night, appellant merely intended to “express[] his anger in
colorful terms.”
Appellant, however, argues that Minnesota caselaw supports the determination that
the requisite intent to cause another extreme fear is absent here because his words and later
acts did not suggest: (1) planning, or (2) intent to follow through on his threat. To support
his argument that he did not plan any threat before making the statement, and thus did not
have the requisite intent to cause another extreme fear, appellant cites State v. Jones, 451

10
N.W.2d 55 (Minn. App. 1990), rev. denied (Minn. Feb. 21, 1990); State v. Begbie , 415
N.W.2d 103 (Minn. App. 1987), rev. denied (Minn. Jan. 20, 1988); and State v. Fischer,
354 N.W.2d 29 (Minn. App. 1984), rev. denied (Minn. Dec. 20, 1984).
In Jones, the defendant was convicted of threat s of violence after he threatened a
correctional counselor five times, detailing when and how he planned to assault and murder
her. 451 N.W.2d at 57. In Begbie, the defendant was convicted of threats of violence after
he told the victim multiple tim es that she and her family would be murdered unless she
assumed his debt. 415 N.W.2d at 104. And in Fischer, the defendant was convicted of
threats of violence after he made many calls to the victim and her family threatening to kill
them. 354 N.W.2d at 31-32. Appellant argues that this case is distinguishable from Jones,
Begbie, and Fischer because any threat did not have “the aura of a coldly calculated plan”
and appellant did not make multi ple statements. But threats of violence neither requires
premeditation nor even a specific intent; instead, “[b]y acting without regard to a known,
substantial risk, a person’s threats, howe ver intended, may violate the statute.” Bjergum,
771 N.W.2d at 57. And a defendant need not make multiple statements to be convicted of
threats of violence. See State v. Knaeble , 652 N.W.2d 551, 556 (Minn. App. 2002)
(affirming a conviction for terroristic threat s when appellant thre atened to chop his
brother’s head off), rev. denied (Minn. Jan. 21, 2003).
To support his argument that he did not in tend to follow through on his threat and
thus lacked the requisite intent, appellant cites State v. Jorgenson, 758 N.W.2d 316 (Minn.
App. 2008), rev. denied (Minn. Feb. 17, 2009), and State v. Dick, 638 N.W.2d 486 (Minn.
App. 2002), rev. denied (Minn. Apr. 16, 2002). In Jorgenson, after the defendant stated

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that he would assault the victim and throw her down the stairs, he assaulted the victim and
threw her down the stairs. 75 8 N.W.2d at 319-20. And in Dick, after being arrested, the
defendant threatened to find out where the officers lived and kill them, and throughout the
duration of his transport the defendant continued to yell obs cenities and threats. 638
N.W.2d at 489. Appellant argues that this case is distinguishable from Jorgenson and Dick
because he did not “act in a way that suggested he would follow through with his threats.”
We disagree. It is not reasonable to conclude that the totality of the circumstances do not
suggest that appellant would follow through when he yelled his threat shortly after breaking
down J.C.’s door, sustaining injuries from J.C., and after an ongoing dispute between J.C.
and his brother. The subjective intent of the actor to actually follow through on the threat
is irrelevant; it is enough if the actor merely intends for the victim to think he might follow
through.
Appellant also argues that any threat resulted from transitory anger and thus was not
sufficient to sustain a conviction for threats of violence.1 Transitory anger “is short-lived
anger with no intent to terrorize.” State v. Taylor , 264 N.W.2d 157, 160 (Minn. 1978).
Appellant claims that his words resulted from surprise, fear, and anger, and that there is no
evidence that he intended for his words to be taken seriously. We di sagree. Appellant’s
threat was not a product of short-lived anger; instead, he yelled that he would return and
shoot up J.C.’s family as he was walking away from the scene of the incident. Under the

1 Respondent argues that because appellant “never asserted at trial that his threats were the
product of transitory anger” his argument is forfeited on appeal. On appeal, however, an
appellant does not forfeit the issue of sufficiency of the ev idence by failing to raise the
specific ground at trial. State v. Pakhnyuk, 926 N.W.2d 914, 918-19 (Minn. 2019).

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circumstances here, it is not reasonable to conclude that appellant did not intend to terrorize
or, at a minimum, did not act in reckless disregard of the ri sk of causing terror when he
threatened to return to J.C.’s home with a gun and shoot up his family.
Based on the evidence presented and viewed in the light most favorable to the jury’s
verdict, we conclude that the state prove d beyond a reasonable doubt that appellant
intended to terrorize J.C. and his family.
Affirmed.