Opinion
No. A05-797.
Filed May 9, 2006.
Appeal from the District Court, Cass County, File No. J3-05-50076.
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, (for appellant F.J.L.)
Mike Hatch, Attorney General, and Earl E. Maus, Cass County Attorney, Jon P. Eclov, Assistant County Attorney, Cass County Courthouse, (for respondent State of Minnesota)
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
In this appeal from an adjudication of delinquency on one count of making terroristic threats, appellant F.J.L. argues that the district court erred by failing to apply a reasonable-juvenile standard when analyzing whether statements were made out of transitory anger. Because appellant waived this issue by failing to raise it before the district court, we affirm.
FACTS
While on patrol, Police Officer Anthony Petrie approached appellant, whom Petrie recognized from previous dealings, to arrest him on outstanding warrants. Appellant ignored Petrie's instructions to stop and, when Petrie walked in front of appellant to try to stop him, appellant swore at Petrie and walked around him. Appellant had his hands in his pockets and refused to remove them. Petrie sprayed appellant in the face with chemical spray and brought him to a squad car and used handcuffs and leg shackles to restrain him.
On the way to the jail, appellant repeatedly threatened to shoot Petrie in the head and the face with a .45-caliber pistol and said that he was willing to die as long as he shot Petrie. A corrections officer testified that at the jail, appellant again threatened Petrie, saying that when he got out of jail, "he was going to shoot [Petrie] in the head because shooting in the chest didn't do any good because he had a body armor on."
Appellant, who was age 16 at the time of the incident, testified that he was afraid of Petrie because of previous incidents. Appellant described himself as being intoxicated, afraid, and angry because his eyes were burning. Appellant had two prior fourth-degree-assault convictions for assaults committed against Petrie.
A delinquency petition was filed alleging that appellant committed one count each of making terroristic threats, underage consumption of alcohol, and disorderly conduct. Following a court trial, the district court found that appellant had committed all three offenses, adjudicated him delinquent, and imposed a disposition that continued probation. This appeal followed.
F.J.L. does not challenge on appeal the district court's findings that acts committed by F.J.L. constituted underage consumption of alcohol and disorderly conduct.
DECISION
Appellant argues that the district court should have applied a reasonable-juvenile standard when evaluating appellant's transitory-anger defense. Appellant concedes that he did not raise this issue before the district court. An appellate court generally will not consider issues raised for the first time on appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
For a discussion of the transitory-anger defense, see State v. Marchand, 410 N.W.2d 912, 915 (Minn.App. 1987), review denied (Minn. Oct. 21, 1987), and State v. Dick, 638 N.W.2d 486, 492-93 (Minn.App. 2002), review denied (Minn. Apr. 16, 2002), stating that "the charge of terroristic threats is not meant to encompass verbal threats expressing transitory anger without intent to terrorize."
Appellant cites Sorenson and State v. Grunig, 660 N.W.2d 134 (Minn. 2003), to argue that this court should review the reasonable-juvenile-standard issue. Neither Sorenson nor Grunig supports applying an exception to the waiver rule in this case. Sorenson involved an exception to the waiver rule for constitutional questions of criminal procedure. 441 N.W.2d at 457. Grunig involved an exception that allows a respondent, without filing a cross-appeal, to defend a decision or judgment on any ground that the law and record permit, including by raising alternative arguments, that would not expand the relief that has been granted to the respondent. 660 N.W.2d at 136.
Applying an exception to the waiver rule in this case would prejudice respondent State of Minnesota because it was not put on notice of the need to provide evidence regarding a reasonable juvenile. The state was not prepared to address a distinction between transitory anger expressed by an adult and by a reasonable juvenile. If the state needed to present other evidence to address a reasonable-juvenile standard, it did not have the opportunity to do so. Accordingly, because appellant failed to raise the reasonable-juvenile-standard issue before the district court, the issue is waived. See Sorenson, 441 N.W.2d at 457 (appellate court has discretion to address constitutional questions of criminal procedure when it "would not work an unfair surprise on a party").
Because appellant has waived the reasonable-juvenile-standard issue, we do not address the merits of the claim. But we do note that appellant cites no authority recognizing a reasonable-juvenile standard for a terroristic-threats offense.