Instructional Error Requires New Trial Even Though State's Evidence Was Sufficient to Support Conviction.

State v. Jorgenson, Minn.Ct.App., 12/9/2008.

The Court reverses a terroristic threats conviction for faulty jury instructions.

Jorgenson had been in a romantic relationship with T.S. for a couple of years.  After a night of hard drinking, sex and some other, rather rude behavior by Mr. Jorgenson the couple were not in the best of moods.  T.S. had destroyed one of his video games.  While in the shower, Jorgenson began to sing a rather vulgar little tune describing all the things he was going to do to T.S..  After singing in the shower, Jorgenson carried out some of the threats, then threw T.S. out into the cold.

Here's the instruction that the trial court gave on the terroristic threats count [emphasis in original]:

First, the defendant threatened, directly or indirectly, to commit a crime of violence. You are instructed that assault is a crime of violence. It need not be proven that the defendant had the actual intention of carrying out the threat.

Second, the defendant made the threat with intent to terrorize another . . . or in reckless disregard of the risk of causing such terror.

. . . .

Third, the defendant’s act took place on or about October 13, 2006 in Stearns County.

The statute provides:  "Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another ..."  The defense did not object to the court's instruction so the review is for "plain error."

The state conceded that the instruction, "assault is a crime of violence," is incorrect because not all assaults are "crimes of violence.  Minn.Stat. 609.1095, S. 1(d).  This is, therefore, error, and it's a plain one.  State v. Vance, 734 N.W.2d 650 (Minn. 2007).  This plain error is also prejudicial; the court likens the instruction to one that eliminates a required element of the crime, an error that is not harmless beyond a reasonable doubt.    The court reverses the conviction and remands for a new trial, even though it also had determined that the state's evidence was sufficient to have supported the conviction.  The court does so, however, not without a dig at those of us in the trenches:

An appellate court, with its generous allocation of time in which to contemplate and decide issues, may devoutly wish that all parties involved at the trial level—prosecutor, defense attorney, and judge—were ever-errorless, despite time pressures, in assuring that specific and adequate instructions are given to a jury. In the absence of such specificity and adequacy, we are required to determine whether prejudice affecting the outcome of the case has been demonstrated.

Is the Governor listening?