State v. Fischer

354 N.W.2d 29, 1984 Minn. App. LEXIS 3438
CourtCourt of Appeals of Minnesota
DecidedAugust 14, 1984
DocketC6-83-2012
StatusPublished
Cited by12 cases

This text of 354 N.W.2d 29 (State v. Fischer) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fischer, 354 N.W.2d 29, 1984 Minn. App. LEXIS 3438 (Mich. Ct. App. 1984).

Opinion

OPINION

PARKER, Judge.

Appellant Anthony Frank Fischer was convicted by a jury of three counts of ter-roristic threats in violation of Minn.Stat. § 609.713, subd. 1 (1982), misdemeanor obstructing legal process in violation of Minn. Stat. § 609.50 (1982), and misdemeanor assault in the fourth degree in violation of Minn.Stat. § 609.224, subd. 2 (1982). Appellant claims he was denied a fair trial by evidentiary rulings which allowed the State to impeach him with a prior conviction if he testified and to introduce evidence of three Spriegl incidents. He also contends the evidence was insufficient to convict him of terroristic threats. Finally, he claims the offenses arose out of the same behaviorial incident and the sentences exagerated the criminality of his conduct. We affirm.

FACTS

Appellant was married to Janet (Bocko-ven) Fischer. They obtained a divorce in 1981. Since then, appellant has often told Janet of his love for her and of his interest in a reconciliation. Janet’s sister is Vicki Griswold. Vicki’s husband’s best friend was Robert “Dale” Porter, who had dated Janet since 1980. By the date of trial, Janet and Dale had tentative plans to marry each other.

On April 4, 1983, at about 6:15 p.m., appellant telephoned Vicki at her home. Appellant expressed anger at other members of her family, blaming them for the breakup of his marriage. He made about six phone calls throughout that evening to Vicki over a period of about six hours. In two of the calls Vicki heard gunshot sounds, and appellant told her that he had a 30.06 rifle. The shooting was interspersed among comments by appellant that if Janet ever remarried, he would kill Dale Porter, Janet and himself. After one of the gunshots he told Vicki that he was shooting Porter in the head and said, “that was Porter” and that “he [appellant] splattered his [Porter’s] brains on the wall.”

Vicki telephoned Janet and also called the police to report that appellant had weapons.

Dale Porter testified that he was over at Vicki’s home the evening when appellant called. Porter secretly listened in on two of the calls on an extension phone in the garage. He heard appellant ask Vicki something like, “what’s Janet doing screwing around with that Porter character?” He also heard shots from a rifle followed by appellant’s statement, “Hear that, Vicki? That’s Porter’s brains are all over the wall.” This was repeated three or four times, with appellant saying, “I’m going to get him. He’s a dead man.” Porter also overheard appellant threaten to kill Janet, Porter and himself if Porter and Janet married.

Janet testified that on the night of April 4 Vicki called her and told her to be careful because appellant was angry. Janet later called the police to tell them that appellant was on a “rampage.” Janet was informed the next day of appellant’s specific threats. -

At about 10:00 p.m. appellant made two telephone calls to Jerald Bockoven, Janet and Vicki’s father. Jerald testified that appellant told him that he, Jerald, was the cause of all the trouble appellant has had. In both phone calls, Jerald heard two to four shots from a gun which sounded like a .22 rifle. Once, after discharging the rifle, appellant said the next one was for Jerald. At one point appellant said, “I’m going to smash your face up so it looks like a squashed tomato.”

At about 11:30 p.m. officers of the Sher-burne County Sheriff’s Department arrived *32 at appellant’s house following a call from appellant and a call from Janet. Appellant talked with Sergeant LeRoy Basavage, who testified that appellant was extremely disturbed and talked of suicide. The officers left to speak with Janet and Dale Porter, and they returned to appellant’s house to arrest him. Appellant was still distraught and smelled of alcohol, although he did not appear intoxicated.

Upon being told he was under arrest, appellant refused to accompany the officers. Appellant swung and hit Basavage in the lip. He was restrained and eventually calmed down. He was released but later became upset again and reached out with his fists clenched. The officers handcuffed appellant and carried him away, kicking and struggling.

In appellant’s house, bullet holes were discovered. The police received four rifles from appellant’s brother, who had removed them from the house at appellant’s request.

Appellant was charged with terroristic threats against Janet, Dale Porter and Jerald Bockoven, obstructing legal process, and assault in the fourth degree. Prior to trial, the State received permission to introduce evidence of three prior assaultive acts of appellant {Spreigl evidence): (1) On December 29, 1980, while separated from Janet, appellant held his family at gunpoint and threatened to commit suicide unless Janet was summoned to the scene. Appellant then surrendered to the authorities. (2) On September 7, 1981, appellant struck Janet in the face and body, causing her to fall from a chair and break a finger. (3) On October 1, 1981, appellant poured hot coffee down the front of Janet’s dress. She was severely burned. Appellant was convicted of assault in the third degree for this incident. The jury did not learn of the conviction because, although the trial court had earlier ruled that the conviction was admissible for impeachment purposes, appellant did not testify.

At trial Janet Fischer and Jerald Bocko-ven both testified about all three of the Spreigl incidents. Vicki Griswold and Dale Porter testified that they were aware of the two incidents involving injury to Janet.

The trial court gave cautionary instructions to the jury concerning the Spreigl evidence, once after the first Spreigl evidence was elicited and again in the final instructions. Following conviction on all five offenses, appellant was sentenced to concurrent executed sentences of 18 months, 21 months, 25 months, 12 months and 90 days.

ISSUES

1. Was appellant denied a fair trial because of the trial court’s ruling that his prior conviction was admissible for impeachment or its ruling that the Spreigl incidents were admissible?

2. Was the evidence sufficient to convict appellant of terroristic threats?

3. Did the sentences violate the prohibition against punishing an individual twice for a single behaviorial incident?

ANALYSIS

I

Appellant claims he was denied a fair trial because of certain trial court eviden-tiary rulings.

A. Appellant contends the trial court erred in its pretrial ruling that the State was permitted to use his prior conviction of assault in the third degree to impeach his credibility if he testified. Appellant did not testify. We do not find any clear abuse of discretion in letting the State use the prior conviction. See State v. Brouillette, 286 N.W.2d 702 (Minn.1979); State v. Jones, 271 N.W.2d 534 (Minn.1978). A detailed analysis of the use of prior convictions for impeachment is in State v. Heidelberger, 353 N.W.2d 582

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Cite This Page — Counsel Stack

Bluebook (online)
354 N.W.2d 29, 1984 Minn. App. LEXIS 3438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fischer-minnctapp-1984.