State of North Dakota, Plaintiff and Appellee v. Darin Arthur Johnson, Defendant and Appellant
No. 20200252
IN THE SUPREME COURT STATE OF NORTH DAKOTA
SEPTEMBER 2, 2021
2021 ND 161
Jensen, Chief Justice.
Appeal from the District Court of Eddy County, Southeast Judicial District, the Honorable James D. Hovey, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Ashley L. Lies, New Rockford, ND, for plaintiff and appellee.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.
[¶1] Darin Johnson appeals from a criminal judgment entered after a jury found him guilty of terrorizing under
I
[¶2] In September 2019, the Eddy County Sheriff was in lawful possession of guns belonging to Johnson. On September 24, 2019, Johnson drove to the courthouse in New Rockford. Once at the courthouse, Johnson revved up his truck‘s engine; drove past the courthouse several times; and shouted profanities at the sheriff, which were heard by employees and the sheriff inside the courthouse. The sheriff sent a deputy outside to speak with Johnson. Johnson told the deputy that he was mad at the sheriff and would be back to get his guns. The deputy testified Johnson was very agitated and the deputy perceived Johnson‘s comments as a threat to the sheriff. Johnson‘s conduct resulted in the courthouse being placed on lockdown.
[¶3] In addition to the conduct outside the courthouse, from September 15 to September 26, 2019, Johnson made multiple posts on social media directed at the sheriff. The postings included several references to song lyrics. One post eluded to Johnson “giv[ing] ya a bullet,” referencing the song “Cop Killer,” and stating “[s]hit is going down if I don‘t get my guns back by Friday!!” Other songs included within the posts contained lyrics suggestive of violence. On September 26, 2019, Johnson was arrested, and charged with terrorizing under
[¶4] A jury trial was held on the terrorizing charge. At the close of the State‘s case, Johnson moved for judgment of acquittal under
II
[¶5] Johnson argues insufficient evidence was presented to the jury to support a conviction under
A
[¶6] Section
A person is guilty of a class C felony if, with intent to place another human being in fear for that human being‘s or another‘s safety . . . or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person . . . [t]hreatens to commit any crime of violence or act dangerous to human life[.]
To convict under
[¶7] Our standard of review is well-established for a defendant‘s challenge to the sufficiency of evidence supporting a jury‘s verdict:
In reviewing the sufficiency of the evidence to convict, we look only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.
State v. Spillum, 2021 ND 25, ¶ 6, 954 N.W.2d 673 (quoting State v. Kenny, 2019 ND 218, ¶ 20, 932 N.W.2d 516).
B
[¶8] Johnson concedes that his conduct was “uproarious and boorish.” He argues his conduct, because it was directed toward a law enforcement officer, did not violate the statute or should otherwise be within a law enforcement exception to
[¶9] Johnson‘s reliance on Hill, Schoppert and Nassif is misplaced. While those cases involved vulgar and boorish behavior toward law enforcement, Hill and Schoppert did not involve threats toward law enforcement or charges of terrorizing, and in Nassif, this Court determined the language was not constitutionally protected. In Hill, the United States Supreme Court was asked to consider the actions of an individual shouting at law enforcement officers to distract their attention, but the conduct was not alleged to be threatening. See Hill, 482 U.S. at 453-58, 465. In Schoppert, the defendant was charged with disorderly conduct for rude gestures toward, and language directed at, law enforcement, but the conduct was not alleged to be threatening. See 469 N.W.2d at 809-10. In Nassif, this Court was requested
[¶10] While
[¶11] Johnson has provided no authority for the proposition that threats against law enforcement officers are an exception from the statute. The plain language of
C
[¶12] The district court instructed the jury on the essential elements of the offense as follows:
The State‘s burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
- Between September 10, 2019, and September 27, 2019, in Eddy County, North Dakota,
- The Defendant, Darin Arthur Johnson;
- With intent to place another in fear for that person‘s or another‘s safety or in reckless disregard of the risk of causing such terror; and
- Threatened to commit any crime of violence or act dangerous to human life.
The court also provided a definition of “threat or threatened” to the jury, in the form proposed by Johnson. That instruction read as follows:
“Threat or Threatened” is defined to mean statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals; the threat must be considered from the perspective of a reasonable person in the recipient‘s position.
“Unchallenged jury instructions become the law of the case.” State v. Aune, 2021 ND 7, ¶ 7, 953 N.W.2d 601 (quoting State v. Coppage, 2008 ND 134, ¶ 23, 751 N.W.2d 254).
[¶14] The sheriff testified that he was afraid for his safety and his family members. The State presented evidence that other people were also concerned for the sheriff‘s safety based on Johnson‘s threats, that the FBI National Threat Organization had received a call from someone concerned about the sheriff‘s safety, and that Johnson had engaged in his conduct intentionally and recklessly. The jury was presented with the social media posts and descriptions of Johnson‘s conduct outside the courthouse. We have reviewed the evidence in a light favorable to the verdict, considered the reasonable inferences the jury could draw from the evidence, and conclude substantial evidence was presented to the jury to warrant a conviction.
III
[¶15] On this record, viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, we conclude a rational fact finder could find Johnson guilty beyond a reasonable doubt. The judgment is affirmed.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte