This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0607
State of Minnesota, Respondent,
vs.
Daniel Barenburg, Appellant.
Filed April 4, 2016 Affirmed in part and reversed in part Bjorkman, Judge
Sherburne County District Court File No. 71-CR-14-995
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County Attorney, Elk River, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Kalitowski, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the sufficiency of the evidence supporting his convictions of
making terroristic threats and making a 911 call while knowing that no emergency exists.
We affirm in part and reverse in part.
FACTS
On July 20, 2014, at approximately 7:10 a.m., Sherburne County Sheriff’s Deputy
Scott Anderson was dispatched to appellant Daniel Barenburg’s residence after Barenburg
reported that his neighbor’s surveillance camera was pointed at his residence and invading
his privacy. Deputy Anderson determined that the camera was not pointed at Barenburg’s
residence and left.
Deputy Anderson returned around 12:40 p.m. after Barenburg’s neighbor reported
that flowers had been thrown at the end of his driveway. Deputy Anderson spoke with
Barenburg’s mother, who said that her son would not come to the door, was thinking of
hurting himself, and had a shotgun. Deputy Anderson also received notification that
Barenburg had threatened his neighbor. Deputy Anderson took a recorded statement from
the neighbor, who reported that Barenburg told him, “Get the f-ck outta here, you better
leave before I change my mind,” and “If you don’t leave, you’re gonna end up dead.” The
neighbor expressed fear for his family’s safety because he believed Barenburg was serious
and had a gun.
Between 1:53 p.m. and 3:51 p.m., Barenburg made numerous 911 calls. During the
first nine calls, Barenburg repeatedly asked why his mother had been in the back of a squad
2 car. In several of these calls, he made offensive and vulgar remarks to the dispatchers,
including that he would like to speak to a “man not a b-tch,” and “you should just go f-cken
go home and kill yourself.” He did not report any emergencies.
A dispatcher transferred Barenburg’s ninth call to Deputy Anderson. Barenburg
again asked why his mother had been in the back of a squad car. Deputy Anderson
explained that his mother felt more comfortable speaking with him in the car. Barenburg
told Deputy Anderson that he had a shotgun and wanted officers to shoot him. Barenburg
was also agitated because he saw Deputy Anderson’s squad car, so Deputy Anderson
eventually left the scene.
At approximately 3:52 p.m., Barenburg told a dispatcher, “If you don’t send
someone here or very, very soon I’m gonna kill a neighbor and then I’m gonna kill myself.”
He then hung up. Deputy Anderson and another member of the sheriff’s department
returned to the scene. Sergeant Frank arrived first, and saw Barenburg walking away from
his front door toward his neighbor’s house. Barenburg was holding what appeared to be a
long, black gun. When Barenburg saw Sergeant Frank, he returned to his house, put the
gun down, and sat down outside the front door. The deputies tried to convince Barenburg
to walk peacefully toward the squad car, to no avail. Eventually, Barenburg picked the gun
up and went back inside his house. The commanding deputy then requested that the
emergency response unit (ERU) come to the scene.
Investigator Luke McLean acted as crisis negotiator for the ERU. He first attempted
to contact Barenburg at 5:56 p.m., but was unsuccessful. Over the next three hours,
Investigator McLean called Barenburg 35 times. Barenburg repeated that he wanted the
3 police to come to his house and shoot him. He continued to complain about his neighbors
and became agitated on several occasions. Eventually, the ERU decided to cut off the
power to the residence. Investigator McLean then used a PA system to speak with
Barenburg for approximately 15 minutes. At approximately 9:20 p.m., Barenburg left the
house and was taken into custody. Deputies first took him to a hospital for evaluation and
then to jail.
Respondent State of Minnesota charged Barenburg with making terroristic threats,
making a 911 call while knowing that no emergency existed, and attempted second-degree
assault. Pursuant to Minn. R. Crim. P. 26.01, subd. 3, the parties submitted the case to the
district court for trial based on stipulated facts. The district court found Barenburg guilty
of the first two charges, but not guilty of attempted second-degree assault. Barenburg
appeals.
DECISION
“In reviewing a sufficiency of the evidence challenge, we review the record in the
light most favorable to the conviction to determine whether the evidence reasonably could
have permitted the [decision-maker] to convict.” State v. Henderson, 620 N.W.2d 688,
704-05 (Minn. 2001). When a conviction is based on circumstantial evidence, we use a
two-step process. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify
the circumstances proved, assuming that the fact-finder resolved any factual disputes in a
manner that is consistent with the verdict. Id. at 598-99. Second, we independently
examine the reasonableness of the inferences the fact-finder could draw from those
circumstances. Id. at 599. All circumstances proved must be consistent with guilt and
4 inconsistent with any rational hypothesis except that of guilt. State v. Andersen, 784
N.W.2d 320, 329 (Minn. 2010).
I. The evidence is sufficient to support Barenburg’s terroristic-threats conviction.
To establish Barenburg made terroristic threats, the state had to prove: (1) he
threatened, directly or indirectly, (2) to commit a crime of violence, (3) with the purpose
to terrorize another or in reckless disregard of the risk of terrorizing another. Minn. Stat.
§ 609.713, subd. 1 (2012). Intent is a state of mind that is generally proved circumstantially
based on inferences drawn from the defendant’s words and actions in light of the totality
of the circumstances. State v. Smith, 825 N.W.2d 131, 136 (Minn. App. 2012), review
denied (Minn. Mar. 19, 2013). And “a person who might lack a specific intent to threaten
or terrorize may nevertheless utter an objectively threatening statement recklessly,
committing a terroristic-threats crime.” State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App.
2009), review denied (Minn. Nov. 17, 2009).
Barenburg concedes that the evidence established that he told his neighbor, “If you
don’t leave, you’re gonna end up dead” and later told the dispatcher, “If you don’t send
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0607
State of Minnesota, Respondent,
vs.
Daniel Barenburg, Appellant.
Filed April 4, 2016 Affirmed in part and reversed in part Bjorkman, Judge
Sherburne County District Court File No. 71-CR-14-995
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Leah G. Emmans, Assistant County Attorney, Elk River, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and
Kalitowski, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the sufficiency of the evidence supporting his convictions of
making terroristic threats and making a 911 call while knowing that no emergency exists.
We affirm in part and reverse in part.
FACTS
On July 20, 2014, at approximately 7:10 a.m., Sherburne County Sheriff’s Deputy
Scott Anderson was dispatched to appellant Daniel Barenburg’s residence after Barenburg
reported that his neighbor’s surveillance camera was pointed at his residence and invading
his privacy. Deputy Anderson determined that the camera was not pointed at Barenburg’s
residence and left.
Deputy Anderson returned around 12:40 p.m. after Barenburg’s neighbor reported
that flowers had been thrown at the end of his driveway. Deputy Anderson spoke with
Barenburg’s mother, who said that her son would not come to the door, was thinking of
hurting himself, and had a shotgun. Deputy Anderson also received notification that
Barenburg had threatened his neighbor. Deputy Anderson took a recorded statement from
the neighbor, who reported that Barenburg told him, “Get the f-ck outta here, you better
leave before I change my mind,” and “If you don’t leave, you’re gonna end up dead.” The
neighbor expressed fear for his family’s safety because he believed Barenburg was serious
and had a gun.
Between 1:53 p.m. and 3:51 p.m., Barenburg made numerous 911 calls. During the
first nine calls, Barenburg repeatedly asked why his mother had been in the back of a squad
2 car. In several of these calls, he made offensive and vulgar remarks to the dispatchers,
including that he would like to speak to a “man not a b-tch,” and “you should just go f-cken
go home and kill yourself.” He did not report any emergencies.
A dispatcher transferred Barenburg’s ninth call to Deputy Anderson. Barenburg
again asked why his mother had been in the back of a squad car. Deputy Anderson
explained that his mother felt more comfortable speaking with him in the car. Barenburg
told Deputy Anderson that he had a shotgun and wanted officers to shoot him. Barenburg
was also agitated because he saw Deputy Anderson’s squad car, so Deputy Anderson
eventually left the scene.
At approximately 3:52 p.m., Barenburg told a dispatcher, “If you don’t send
someone here or very, very soon I’m gonna kill a neighbor and then I’m gonna kill myself.”
He then hung up. Deputy Anderson and another member of the sheriff’s department
returned to the scene. Sergeant Frank arrived first, and saw Barenburg walking away from
his front door toward his neighbor’s house. Barenburg was holding what appeared to be a
long, black gun. When Barenburg saw Sergeant Frank, he returned to his house, put the
gun down, and sat down outside the front door. The deputies tried to convince Barenburg
to walk peacefully toward the squad car, to no avail. Eventually, Barenburg picked the gun
up and went back inside his house. The commanding deputy then requested that the
emergency response unit (ERU) come to the scene.
Investigator Luke McLean acted as crisis negotiator for the ERU. He first attempted
to contact Barenburg at 5:56 p.m., but was unsuccessful. Over the next three hours,
Investigator McLean called Barenburg 35 times. Barenburg repeated that he wanted the
3 police to come to his house and shoot him. He continued to complain about his neighbors
and became agitated on several occasions. Eventually, the ERU decided to cut off the
power to the residence. Investigator McLean then used a PA system to speak with
Barenburg for approximately 15 minutes. At approximately 9:20 p.m., Barenburg left the
house and was taken into custody. Deputies first took him to a hospital for evaluation and
then to jail.
Respondent State of Minnesota charged Barenburg with making terroristic threats,
making a 911 call while knowing that no emergency existed, and attempted second-degree
assault. Pursuant to Minn. R. Crim. P. 26.01, subd. 3, the parties submitted the case to the
district court for trial based on stipulated facts. The district court found Barenburg guilty
of the first two charges, but not guilty of attempted second-degree assault. Barenburg
appeals.
DECISION
“In reviewing a sufficiency of the evidence challenge, we review the record in the
light most favorable to the conviction to determine whether the evidence reasonably could
have permitted the [decision-maker] to convict.” State v. Henderson, 620 N.W.2d 688,
704-05 (Minn. 2001). When a conviction is based on circumstantial evidence, we use a
two-step process. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify
the circumstances proved, assuming that the fact-finder resolved any factual disputes in a
manner that is consistent with the verdict. Id. at 598-99. Second, we independently
examine the reasonableness of the inferences the fact-finder could draw from those
circumstances. Id. at 599. All circumstances proved must be consistent with guilt and
4 inconsistent with any rational hypothesis except that of guilt. State v. Andersen, 784
N.W.2d 320, 329 (Minn. 2010).
I. The evidence is sufficient to support Barenburg’s terroristic-threats conviction.
To establish Barenburg made terroristic threats, the state had to prove: (1) he
threatened, directly or indirectly, (2) to commit a crime of violence, (3) with the purpose
to terrorize another or in reckless disregard of the risk of terrorizing another. Minn. Stat.
§ 609.713, subd. 1 (2012). Intent is a state of mind that is generally proved circumstantially
based on inferences drawn from the defendant’s words and actions in light of the totality
of the circumstances. State v. Smith, 825 N.W.2d 131, 136 (Minn. App. 2012), review
denied (Minn. Mar. 19, 2013). And “a person who might lack a specific intent to threaten
or terrorize may nevertheless utter an objectively threatening statement recklessly,
committing a terroristic-threats crime.” State v. Bjergum, 771 N.W.2d 53, 57 (Minn. App.
2009), review denied (Minn. Nov. 17, 2009).
Barenburg concedes that the evidence established that he told his neighbor, “If you
don’t leave, you’re gonna end up dead” and later told the dispatcher, “If you don’t send
someone here or very, very soon I’m gonna kill a neighbor and then I’m gonna kill myself.”
Accordingly, the only issue is whether the state proved the intent element of the offense.
Barenburg argues that the circumstances proved are not inconsistent with the rational
hypothesis that he made the statements “without understanding there was a substantial and
unjustifiable risk that his statements would cause terror.” We are not persuaded.
Barenburg’s argument is premised on his assertion that he made the threatening statements
5 solely to induce the police to come to his house and shoot him or have the police watch
him kill himself. But to induce the police to respond to the threats, Barenburg would
necessarily intend that they be taken seriously. And after he repeated the threat to the 911
dispatcher, he left his house with a gun and walked toward his neighbor’s house. Because
Barenburg’s goal was to elicit a response from law enforcement, it is not rational to
conclude that he lacked knowledge that his statements would cause terror or that he did not
appreciate the substantial risk that his statements would have that effect.
Moreover, the record does not support Barenburg’s argument that it was clear that
“his only intent was to commit suicide.” Barenburg first threatened his neighbor; nothing
in the record indicates that he told his neighbor he intended to commit suicide. And the
neighbor specifically stated that he felted threatened by Barenburg’s remarks. See State v.
Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975) (stating that a victim’s
reaction is circumstantial evidence relevant to the defendant’s intent in making the
threatening statement).
In sum, the circumstances proved are inconsistent with any rational hypothesis
except that Barenburg made the threatening statements with the intent to terrorize another,
or in reckless disregard of the risk. We therefore conclude that the evidence is sufficient
to support Barenburg’s conviction of making terroristic threats.
II. The evidence is insufficient to support Barenburg’s conviction of making a 911 call while knowing there was no emergency.
An individual commits a misdemeanor when he “makes or initiates an emergency
call, knowing that no emergency exists, and with the intent to disrupt, interfere with, or
6 reduce the provision of emergency services or the emergency call center’s resources,
remains silent, or makes abusive or harassing statements to the call recipient.” Minn. Stat.
§ 609.78, subd. 1(6) (Supp. 2013). To establish the knowledge element of the offense, the
state had to prove that Barenburg believed that an emergency did not exist when he made
the 911 calls. See Minn. Stat. § 609.02, subd. 9(1)-(2) (2012) (stating that when a statute
includes criminal intent as an element, the use of some form of the verb “know” requires
“that the actor believes that the specified fact exists”).
Barenburg argues that the circumstances proved are consistent with the rational
hypothesis that he called 911 because of the emergency created by his suicidal intent. We
agree. In finding that Barenburg knew there was no emergency when he made the 911
calls, the district court focused on the fact that some of Barenburg’s calls consisted of only
vulgar remarks to the dispatchers. But consideration of the evidence as a whole
demonstrates Barenburg called 911 in response to his mental distress and suicidal thoughts.
Barenburg’s mother was concerned that Barenburg was going to hurt himself before
he began making the 911 calls. Barenburg then started calling 911, and in his first
conversation after being connected with Deputy Anderson, said that he wanted the police
to shoot him. From that point on, Barenburg made repeated statements over the course of
five and a half hours about wanting to die and wanting the police to shoot him.
Moreover, law-enforcement records reflect concern that Barenburg might commit
suicide. Crisis negotiator McLean’s narrative report indicates that the dispatcher advised
him of “a possible suicidal individual.” McLean’s general description of his interactions
with Barenburg states that “[Barenburg] was highly aggressive throughout the
7 conversations that I had with him and he wanted law enforcement to come into his
household and kill him. I attempted to reason with Barenburg but he was unable to control
his emotions.” The transcripts of the earlier 911 calls similarly show that Barenburg was
aggressive and emotionally distressed. While it is true that Barenburg may not have
expressly reported an emergency during the calls, his demeanor and statements reflected
the mental-health emergency Barenburg himself was experiencing. Nothing in Minn. Stat.
§ 609.78, subd. 1(6) excludes emergencies caused by the caller’s mental health or requires
that the call be based on an emergency situation facing someone other than the caller. The
record shows that Barenburg’s mental distress prompted all of his interactions with the 911
dispatchers and police. His clearly demonstrated distress was the emergency to which law
enforcement appropriately responded.
Because the circumstances proved are consistent with a rational hypothesis other
than guilt, the evidence is insufficient to support Barenburg’s conviction of making a 911
call while knowing that no emergency exists. Accordingly, we reverse this conviction.
Affirmed in part and reversed in part.