State of Minnesota v. Dale Duane Fitch

This opinion is nonprecedential except as provided by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
A25-0115

State of Minnesota,
Respondent,

vs.

Dale Duane Fitch,
Appellant.

Filed January 20, 2026
Affirmed
Ross, Judge

Crow Wing County District Court
File No. 18-CR-24-3073

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

Kelsey Hopps, Crow Wing County Attorney, Brainerd, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julia Q. Brady, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Ede, Judge.

NONPRECEDENTIAL OPINION

ROSS, Judge

A jury received evidence that Dale Fitch pointed his finger at his neighbor during a

heated outburst while telling him, among other things, “I’m gonna fucking kill you and

bury you in Stillwater.” Fitch argues on appeal from his conviction of making threats of
violence first that the jury did not receive sufficient evidence to find him guilty because his

statement was an expression of transitory anger rather than an actual threat to commit a

violent crime and second that, because his statement was not a true threat, it falls under the

protection of his First Amendment right of free speech. Because we hold that the evidence

supports the jury’s finding that Fitch’s statement was a true threat to commit violence, both

arguments fail, and we affirm.

FACTS

This appeal arises from a threats-of-violence conviction after the state charged Dale

Fitch with committing the crime and a Crow Wing County jury heard testimony describing

the following circumstances.

An owner of Brainerd commercial property was outside on one of his lots

conversing with a construction contractor one morning in August 2024 when an altercation

occurred involving Fitch. Fitch, who resided on the bordering parcel, suddenly approached

the two men and abruptly interrupted their discussion.

The neighbor, who had previously secured a trespass order barring Fitch from his

property, testified about the altercation. He described Fitch as having red eyes and being

“haggard,” “unshaven, unclean,” “aggressive,” “trembling,” and “disheveled.” The

neighbor told Fitch he was trespassing and had to leave. Fitch then hurled insults, calling

him a “fucking idiot” multiple times. Fitch rushed to within two feet of the neighbor. “[I]t

was like a charge at me,” he recounted. “He was pointing at me.” The neighbor recalled

Fitch’s words, which he characterized as “bone chilling”: “I mean he -- he threatened . . . he

told me that he was gonna take me to Stillwater and bury me.” He understood Fitch to

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mean, “That he was gonna kill me and that he knew where he was gonna take me after

killing me. That’s what I took from that for sure.”

The 240-pound contractor also recounted the episode, describing Fitch’s demeanor

as “very, very upset” and “[m]ad, mad, mad, like almost crazy mad.” He added, “I was

worried, and it takes a lot to get me worried.” He testified, “[Fitch] ran at [the neighbor]

and that’s when I got nervous myself when he ran at [the neighbor] because I thought he

was gonna tackle him and do something to him.” He continued, “[H]e said he was gonna

effing kill him and bury him in Stillwater,” before specifying what he meant by “effing,”

“He said fucking kill him.” The contractor said that there was nothing “fuzzy” about his

memory and that he was certain he heard Fitch say, “I’m gonna fucking kill you.” He

clarified the sequence, testifying, “[Fitch] made that threat and then charged him.” He

wondered in the moment, “[O]h my God am I gonna have to go to the back of the truck

and get a tire iron to help . . . or am I gonna have to hit this guy . . . or what am I gonna do

here?”

The jury found Fitch guilty, and the district court convicted him of making reckless

threats of violence under Minnesota Statutes section 609.713, subdivision 1 (2024). The

district court sentenced Fitch to serve 24 months in prison.

Fitch appeals.

DECISION

Fitch offers two arguments to contest his conviction. He argues first that the

evidence was insufficient to prove that his communication caused his neighbor to

reasonably apprehend that he would commit a crime of violence. And he argues second

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that the threats-of-violence statute is unconstitutional as applied to him because his

statement was protected speech under the First Amendment. Neither argument is

convincing.

I

Fitch contends that the state’s evidence was insufficient to support his conviction.

This evidence-insufficiency argument leads us to review the record in the light most

favorable to the conviction and determine whether the evidence and its reasonable

inferences would allow the jury to conclude that Fitch was guilty beyond a reasonable

doubt. State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016). In doing so, we assume that

the jury believed the evidence favoring the verdict and disbelieved any contradictory

evidence. Id. A person makes a criminal threat of violence if, among other alternatives, he

“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.” Minn. Stat.

§ 609.713, subd. 1. The supreme court has construed the statute within the constraints of

the First Amendment to mean that a threat of violence involves four elements: (1) words

or actions that communicate the defendant’s intention to injure another or his or her

property; (2) the threat is to commit one of the statutorily defined crimes of violence; (3) the

words or conduct create a reasonable apprehension that the defendant will act on the threat;

and (4) the defendant made the violent threat consciously disregarding “a substantial and

unjustifiable risk that [his] words or conduct will cause extreme fear.” State v. Mrozinski,

971 N.W.2d 233, 240 (Minn. 2022). A “crime of violence” includes physical assault and

intentional killing. See Minn. Stat. § 609.713, subd. 1; Minn. Stat. § 609.1095, subd. 1(d)

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(2024) (listing as crimes of violence those statutes that criminalize assault in the first,

second, and third degree, as well as statutes criminalizing murder and manslaughter). Fitch

concedes that telling his neighbor that he would “fucking kill” him references a crime of

violence, and he contends only that the evidence fails to support the idea that his words

were not merely “expressions of transitory anger.”

We begin by rejecting Fitch’s position that we address whether a threat occurred as

a matter involving circumstantial rather than direct evidence. “A threat is a declaration of

an intention to injure another or his property by some unlawful act.” State v. Schweppe,

237 N.W.2d 609, 613 (Minn. 1975). And “[t]he test of whether words or phrases are

harmless or threatening is the context in which they are used.” Id. Circumstantial evidence

requires the fact-finder to infer whether a disputed fact existed, while direct evidence

requires no inferential reasoning. State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017).

Direct evidence includes witness testimony asserting the disputed fact based on the

witness’s personal knowledge or observation. State v. Horst, 880 N.W.2d 24, 40 (Minn.

2016). We are satisfied that the state provided direct evidence on the challenged elements

here.

The direct evidence came by way of trial testimony. Both the victim-neighbor and

the witnessing contractor testified directly, recounting the substance of Fitch’s threatening

words. They also testified asserting directly that, based on those words and Fitch’s

aggressive demeanor and confrontational actions, they feared that he would act violently,

consistent with his words. This testimony constitutes direct evidence of both the fact that a

threat occurred and the fact that the witnesses were apprehensive that Fitch would act on

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his threat. The supreme court faced a similar question in Schweppe based on direct evidence

from witnesses who heard the defendant say that “he wanted to kill Doug and his mom,”

and the Schweppe court applied a similar analysis to reach a conclusion like the one we

reach today:

Defendant’s alleged statements in this case clearly constituted
a threat to inflict personal injury. If the jury believed the
unrefuted testimony of the prosecution witnesses, as we must
assume from the verdict, then there was ample evidence to
support the conclusion that defendant on May 7, 1973,
threatened to kill Douglas Grotte and his mother, Corine
Grotte. Obviously, such threats involved a “crime of violence”
prohibited by our homicide statutes . . . .

237 N.W.2d at 612–14. Based on the direct testimony summarized above, we hold that the

state provided direct evidence, that the evidence supports the finding that Fitch threatened

to kill his neighbor, and that this threat involved a crime of violence.

Whether the victim-neighbor’s directly proved apprehension was reasonable is also

not a factual matter involving an inferential, circumstantial-evidence inquiry. Fitch

correctly recognizes that the reasonable-apprehension component is a matter that reviewing

“courts must decide.” Fitch’s “chilling” words—delivered in a deliberate tone and

presented in the context of his ongoing conflict with his neighbor whom he engaged with

aggressive physical actions—provide sufficient ground for the jury to have found the

neighbor’s apprehension to be reasonable.

We are not led to a different conclusion by Fitch’s effort to cast his conduct in terms

of mere “transitory anger.” The effort would misdirect us from our limited duty on appeal

in this case, and it would require us to give the term “transitory anger” undue consideration.

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 The term “transitory anger” was first included in the commentary to the Model Penal

Code section on which Minnesota built the threats statute: “In drafting legislation

penalizing threats, we would not wish to authorize grave sanctions against the kind of

verbal threat which expresses transitory anger rather than settled purpose . . . to terrorize

the other person.” Model Penal Code § 211.3 cmt. (Tentative Draft No. 11 1960) (emphasis

added); see also Schweppe, 237 N.W.2d at 398 (discussing the threats statute’s legislative

history). The term as first used therefore references the question of a defendant’s intention

to terrorize. See State v. Marchand, 410 N.W.2d 912, 915 (Minn. App. 1987) (“[T]o

warrant reversal based on appellant’s argument, this court must [determine] that the

evidence indicates he acted not out of an intent to terrorize but rather in the midst of

transitory anger.”), rev. denied (Minn. Oct. 21, 1987). But the defendant’s intent to

terrorize is not always relevant, and it is not relevant here. Unlike the originating section

of the model code about which the drafters were commenting, the version of the Minnesota

statute under which Fitch was convicted criminalizes not only threats arising from the

speaker’s intent to terrorize but, alternatively, threats that arise from the speaker’s “reckless

disregard of the risk of causing such terror.” Minn. Stat. § 609.713, subd. 1. The single-

count criminal complaint establishes that the state charged Fitch specifically under this

reckless-disregard basis rather than any alleged intent to terrorize, stating, “Charge: Threats

of Violence - Reckless Disregard Risk.” And the jury was instructed that it could convict

Fitch on this ground. The jury then found him guilty exactly as charged: “We the jury find

the Defendant guilty of the charge[] of Threats of Violence - Reckless Disregard Risk in

violation of Minnesota Statute section 609.713, subdivision 1.” The warrant of

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commitment likewise describes Fitch’s crime of conviction as “Threats of Violence -

Reckless Disregard Risk.” To be clear, our role is not to second-guess the fact-finder as to

Fitch’s purpose. But even if it were, Fitch’s transitory-anger argument would fail because

the conviction does not rest on his intent to terrorize.

In sum, we are satisfied that the jurors here were provided the words in substance

and context sufficient to find Fitch guilty on the single count charged. We therefore hold

that the evidence supports the conviction.

II

We are also unconvinced by Fitch’s First Amendment argument. The First

Amendment generally recognizes a person’s right to speak freely and safeguards it from

governmental infringement, U.S. Const. amend. I, but “[t]rue threats of violence, everyone

agrees, lie outside the bounds of the First Amendment’s protection.” Counterman v.

Colorado, 600 U.S. 66, 72 (2023); see also Mrozinski, 971 N.W.2d at 245–46. Fitch

presents his free-speech rationale in a single paragraph:

Fitch’s alleged threat to kill [his neighbor] was a
sentence said right in the middle of a rant meant to convey
Fitch’s dislike of [him]. Insults, not additional threats,
bookended the comments at issue. Fitch did not have a weapon.
He did not have a means of transportation readily available,
which would have been necessary if he were to carry out the
specific threat he is accused of making. His words, while
distasteful and callous, were not “true threats.” Fitch’s
comments should be considered protected speech under the
First Amendment, and this Court should conclude section
609.713 is unconstitutional as applied here.

His free-speech argument fails.

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 Fitch’s argument reflects a misunderstanding of the “true threats” exclusion from

constitutional protection. A comment “can count as . . . a [true] threat based solely on its

objective content.” Counterman, 600 U.S. at 72. In the same way that falsely yelling “Fire!”

in a crowded theater is unprotected because of the immediate danger the words create, see

Thomas v. Collins, 323 U.S. 516, 536 (1945), recklessly threatening a crime of violence is

unprotected because of the immediate terror the words create, see Mrozinski, 971 N.W.2d

at 245–46. Fitch’s implied premise that a threat is not a true threat unless the threatener has

shown the ready means to “carry out the specific threat” finds no support in any First

Amendment precedent he cites or that we are aware of. To the contrary, the constitutionally

authorized prohibition on true threats legitimately protects individuals from three

alternative and independent harms. It protects first from “the fear of violence,” second,

“from the disruption that fear engenders,” and third, “from the possibility that the

threatened violence will occur.” Virginia v. Black, 538 U.S. 343, 359–60 (2003) (quotation

omitted). The objective content of Fitch’s words in context caused his neighbor and the

contractor to reasonably fear a crime of violence generally, and this makes his words a true

threat. We acknowledge that his words might alternatively have caused the men specifically

to fear murder and offsite burial if Fitch had, say, also brandished a weapon and jingled his

car keys to accentuate his threat in literal fashion. But this sort of particularized evidence

to validate a particularized fear that a defendant will execute a particularized threat to

commit a crime of violence is simply not necessary to except a threat from constitutional

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protection. Because Fitch’s words in context comprised a true threat, his as-applied

constitutional challenge to the threats-of-violence statute fails.

Affirmed.

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