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State presented sufficient evidence to support adjudication for making terrorist threats

State v. D.A.M., 2020AP821, District 2, 11/25/20 (one-judge decision; ineligible for publication); case activity

The evidence at D.A.M.’s trial was sufficient to show his conduct constituted a terrorist threat under § 947.019.

D.A.M. was not supposed to be on the premises of Bradford High School, so when he appeared on school property J.S., the dean of students, asked him to leave. D.A.M. did, but then returned a couple more times. Each time J.S. again told him to leave, and D.A.M. responded by saying he was going to shoot J.S. (¶3-6).

The first element of making a terroristic threat in violation of § 947.019(1) requires the defendant to have made a threat of harm. D.A.M. argues that this “threat” has to be a “true threat” as defined by State v. Perkins, 2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d 762:

A true threat is determined using an objective reasonable person standard. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

When applying this objective test, a court considers “the full context of the statement, including all relevant factors that might affect how the statement could reasonably be interpreted.” Id., ¶31. The relevant factors include: “how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether [the threat] was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.” Id.

The court finds the evidence sufficient to establish that the statements made by D.A.M. around and to J.S. were an unprotected criminal threat:

¶18     In its ruling adjudicating D.A.M. delinquent …, the [circuit] court found that “the comments that [D.A.M.] made about shooting or capping, or getting a gang to shoot [J.S.] is a threat of bodily harm” and that that fact is not “even anything anybody can argue about.” The court found that the State met its burden of proving § 974.019(1) because, among other reasons, it was made directly to school personnel and given the climate in this country for at least the last twenty years since the Columbine shootings, “[i]n this day and age … a reasonable person making that threat would foresee that a reasonable person would interpret the threat as a serious expression of intent to do harm.”

¶19     We conclude that the evidence presented at trial is sufficient to support this finding. There was no indication that the comments were made in jest, or involved political views or any other form of protected speech. They were not innocuous. D.A.M. repeated his comments three times, and they unequivocally and unconditionally conveyed the message directly to J.S. that D.A.M. was threatening to shoot him. A speaker would reasonably foresee that a listener would reasonably interpret these threats as a serious expression of a purpose to inflict harm.

The second element of making a terroristic threat  requires proof the defendant intended one of the results specified in § 947.019(1)(a) through (d) (or created an unreasonable and substantial risk of such a result, and was aware of the risk, § 947.019(1)(e)). The evidence here supported finding D.A.M. intended two of these results:

¶22     …[T]he [circuit] court found that the school and school grounds are a “public setting” and the repeated threats were made with the intent to cause “public panic or fear” in violation of Wis. Stat. § 947.019(1)(c). The court found that J.S. took the threats seriously and they caused him fear. The court also noted that at least two girls heard the threats and that they were made at a time when 1600 students were coming out of the school. Accordingly, the court found that “panic and fear” would naturally arise from statements such as those D.A.M. made, “especially when they are repeatedly said, and by a person who is not even supposed to be on school property.”

¶23     Similarly, the circuit court found that the State had met its burden of proving that the threats made by D.A.M. caused “an interruption of the education to the students” not only at Bradford, but also at Hillcrest [the school D.A.M. attended] because of the necessity to involve administrators from there as well. The court concluded that this need to take administrators at both schools away from their normal duties in order to address the threats made by D.A.M. was a clear interruption of government function as set forth in Wis. Stat. § 947.019(1)(d).

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