FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
SEPTEMBER 2, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 161
State of North Dakota, Plaintiff and Appellee
v.
Darin Arthur Johnson, Defendant and Appellant
No. 20200252
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.
State v. Johnson
No. 20200252
Jensen, Chief Justice.
[¶1] Darin Johnson appeals from a criminal judgment entered after a jury
found him guilty of terrorizing under N.D.C.C. § 12.1-17-04. We reject
Johnson’s invitation to create an exception to N.D.C.C. § 12.1-17-04 when the
unlawful conduct is directed toward a law enforcement officer and conclude
that sufficient evidence supports Johnson’s conviction. We affirm.
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
N.D.C.C. § 12.1-17-04, a class C felony.
[¶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 N.D.R.Crim.P. 29
asserting the State had presented insufficient evidence to allow the jury to
return a verdict of guilty. The motion was denied. Johnson renewed his Rule
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29 motion after the State’s rebuttal case. The motion was again denied. The
jury subsequently found Johnson guilty of terrorizing.
II
[¶5] Johnson argues insufficient evidence was presented to the jury to
support a conviction under N.D.C.C. § 12.1-17-04(1), asserting his conduct was
not unlawful because it was directed toward a law enforcement officer. He
frames his single issue on appeal as follows: “Whether a law enforcement
officer can be ‘terrorized’ under North Dakota law, by an individual who makes
verbal and social media statements against said law enforcement officer?”
A
[¶6] Section 12.1-17-04(1), N.D.C.C., provides, in relevant part:
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 N.D.C.C. § 12.1-17-04, the State must prove: “(1) the
defendant intended to cause another person to fear for his or another person’s
safety or acted with reckless disregard of the risk of causing such fear, and (2)
the defendant made a threat to commit a ‘crime of violence or act dangerous to
human life.’” State v. Brossart, 2015 ND 1, ¶ 19,
858 N.W.2d 275 (quoting State
v. Laib,
2005 ND 191, ¶ 8,
705 N.W.2d 815).
[¶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
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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 N.D.C.C. § 12.1-17-04. Johnson cites to decisions of this Court and
the United States Supreme Court as support for a law enforcement exception
to the charge of terrorizing. City of Houston v. Hill, 482 U.S. 451, 465 (1987);
City of Bismarck v. Schoppert,
469 N.W.2d 808, 811-12 (N.D. 1991); City of
Bismarck v. Nassif,
449 N.W.2d 789, 795 (N.D. 1989).
[¶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 to consider the following
statement made to law enforcement: “you fucking son of a bitch, I’m going to
go back into the house and get my shotgun and blow you bastards away[.]”
449
N.W.2d at 795. In Nassif, we rejected the defendant’s assertion he had engaged
in protected speech and rejected the assertion the evidence was insufficient to
sustain a conviction for disorderly conduct, but reversed on the separate issue
of whether the defendant competently, intelligently, and voluntarily waived
the defense of lack of criminal responsibility.
Id. at 792-98.
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[¶10] While N.D.C.C. § 12.1-17-04 does not define “threat,” we have explained
that threats are “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.” Brossart, 2015 ND 1, ¶ 19
(quoting State v. Curtis,
2008 ND 93, ¶ 5,
748 N.W.2d 709). “This Court has
suggested an objective standard applies and the facts and circumstances must
be considered from the perspective of a reasonable person in the recipient’s
position.”
Id. Whether a communication constitutes a threat presents a
question for the jury. Id.; see also State v. Haugen,
392 N.W.2d 799, 805 (N.D.
1986).
[¶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 N.D.C.C. § 12.1-17-04 does not provide any “law enforcement
exception” for conduct that violates this statute. We have said that “public
policy is declared by the Legislature’s action, and that the Legislature is much
better suited than the courts to identify or set public policy in this state.” Potts
v. City of Devils Lake,
2021 ND 2, ¶ 15,
953 N.W.2d 648 (refusing to adopt a
public policy exception to at-will employment under N.D.C.C. § 34-03-01 for
law enforcement officers acting in self-defense). We reject Johnson’s invitation
to create, through judicial action, a law enforcement exception to N.D.C.C. §
12.1-17-04.
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:
1) Between September 10, 2019, and September 27, 2019, in Eddy
County, North Dakota,
2) The Defendant, Darin Arthur Johnson;
3) 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
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4) 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).
[¶13] The jury was instructed on the elements of the charge of terrorizing and
provided with the definition of “threat or threatening” as proposed by Johnson.
Johnson’s instruction on the definition of a threat or threatening required the
jury to consider Johnson’s conduct from the perspective of a reasonable person
in the recipient’s position and is consistent with our prior cases.
[¶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
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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
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