State v. Milner

• Decision Date: 22 October 1997
• Docket Number: No. 96-1424,96-1424
• Citation: 571 N.W.2d 7
• Parties: STATE of Iowa, Appellee, v. Timothy MILNER, Appellant.
• Court: Iowa Supreme Court

Page 7

571 N.W.2d 7

STATE of Iowa, Appellee, v. Timothy MILNER, Appellant.

No. 96-1424.

Supreme Court of Iowa.

Oct. 22, 1997.

Joseph L. Walsh, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, John Sarcone, County Attorney, and George Karnas, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, NEUMAN, ANDREASEN, and TERNUS, JJ.

TERNUS, Justice.

Defendant, Timothy Milner, was convicted of threat of arson based on statements he made to employees of the Department of Employment Services (DES) between June 13 and June 16, 1995. See Iowa Code § 712.8 (1995). He appeals, claiming (1) the evidence was insufficient to support his conviction, and (2) the statute under which he was convicted is overbroad and vague. We find substantial evidence in the record to support Milner's conviction of threatening arson and we detect no constitutional infirmity in section 712.8. Therefore, we affirm.

I. Background Facts and Proceedings.

In June of 1995, DES denied unemployment benefits to Milner. Milner went to a Des Moines office of DES and talked with a DES interviewer, Tom Saylor. Milner was visibly angry and, using profanity, expressed dissatisfaction with the decision made by DES on his claim. As he left, he said to Saylor, "Just remember what happened in Oklahoma City." ¹ Saylor viewed this statement as a threat and reported the incident to the Des Moines police.

Three days later Milner telephoned DES and spoke with DES employee Ann Morris. Milner was still angry and told Morris, "I'll use the last of my gas money to come down and blow the place up." Several times during Milner's fifteen-minute conversation with Morris he said he would "drive in his truck and come blow [them] away."

Morris transferred Milner's call to her supervisor, Glen Howard. Milner continued to be very agitated and upset during his conversation with Howard. He spoke to Howard for forty-five minutes, expressing his dissatisfaction with DES and telling Howard what he--Milner--might or would do about his complaints. Milner said, among other things, that he would come to the DES office with a hatchet and that he would drive his truck into their building. During a later phone conversation between Milner and Howard, Milner said, "I'm not going to be responsible for my behavior if you continue to aggravate me." Milner also told Howard "someone might get hurt" and it is "not going to be pretty if I have to come down there." These conversations were reported to the police.

The DES staff was very concerned about Milner's statements. Based on the content of Milner's statements, his tone of voice, and his agitated state, DES employees believed Milner was desperate and a threat to their safety. DES formed a security committee hired a security consultant, and installed a security system.

Based on these events, the State filed a trial information charging Milner with threatening to commit arson in violation of Iowa Code section 712.8. Milner's pretrial motion to dismiss the charge on the basis that section 712.8 was unconstitutionally overbroad and vague was overruled.

Milner waived jury trial, and the case was submitted to the district court on a stipulated record consisting of the police reports, the depositions of witnesses, and the documents submitted in connection with the motion to dismiss. The district court found Milner guilty of the charge of threat of arson and sentenced him to five years imprisonment, suspending the sentence and placing Milner on two years probation. Milner brings this appeal.

We start our analysis with an interpretation of section 712.8 and consideration of whether the evidence was sufficient to support the trial court's decision that Milner violated the statute. We will then determine whether there is any merit to Milner's constitutional challenges to the statute as we have interpreted and applied it.

II. Sufficiency of the Evidence.

A. Interpretation of the statute. Milner was convicted of violating Iowa Code section 712.8:

Any person who threatens to place or attempts to place any incendiary or explosive device or material, or any destructive substance or device in any place where it will endanger persons or property, commits a class "D" felony.

Iowa Code § 712.8. Although we have never interpreted section 712.8 before, we have considered the meaning of the words "threaten" and "threat" in connection with other criminal statutes.

In prior cases interpreting the words "threaten" or "threat," we have applied the common meaning of those words. In State v. Crone, 545 N.W.2d 267 (Iowa 1996), we defined the word "threaten" using its ordinary meaning: "promise punishment, reprisal, or other distress to." 545 N.W.2d at 271 (quoting Webster's Third New International Dictionary 2382 (1993)). In State v. Jackson, 305 N.W.2d 420 (Iowa 1981), we defined the word "threat" as "an expression of an intention to inflict evil, injury or damage on another." 305 N.W.2d at 423 (quoting Webster's Third New International Dictionary 2382 (1976)). We further explained in Crone, "the threat [must] be definite and understandable by a reasonable person of ordinary intelligence." 545 N.W.2d at 271. Moreover, in considering whether a reasonable person of ordinary intelligence would interpret another's statement as a threat, the statement is viewed in light of the surrounding circumstances. State v. McGinnis, 243 N.W.2d 583, 589 (Iowa 1976).

We think the same interpretation of "threaten" and "threat" applies here. Section 712.8 prohibits a person from expressing an intention to place an incendiary, explosive, or destructive device or material in a place where it will endanger persons or property. The prohibited statements must be understandable as a threat by a reasonable person of ordinary intelligence. Interpreted in this way, the statute encompasses only true threats and does not reach expressions that a reasonable person would understand as a joke, idle talk, or mere statements of political hyperbole.

B. Sufficiency of the evidence. In considering Milner's sufficiency-of-the-evidence claim, we view the record in the light most favorable to the State. State v. Fratzke, 446 N.W.2d 781, 783 (Iowa 1989). We consider all the evidence, not just the evidence supporting the conviction. Id.

Milner contends his statement, "Just remember what happened in Oklahoma City," is not a threat by him to use an incendiary or explosive device. But Milner did not make a vague and isolated reference to the Oklahoma City bombing. Over a five-day period, he made, in an angry and threatening tone of voice, the following statements:

1. Just remember what happened in Oklahoma City 2. I'll use the last of my gas money to come down and blow the place up. ²

3. I'll drive in my truck and come blow you away.

4. I'm not going to be responsible for my behavior if you continue to aggravate me.

5. Someone might get hurt.

6. It is not going to be pretty if I have to come down there. ³

A reasonable person of ordinary intelligence could construe these statements, considered in the context and manner in which they were made, as serious expressions of an intention to place an "explosive device or material" where it will harm people or property. As we have stated before, "[t]hreats need not be explicit; they may be made by innuendo or suggestion. It is only necessary that the threat be definite and understandable by a reasonable person of ordinary intelligence." Crone, 545 N.W.2d at 271 (citation omitted). Milner's reference to the Oklahoma City incident, where a truck was rigged as a bomb, clearly made his later comments about driving his truck to the DES office and blowing the place up understandable as a threat to use an explosive device. See Webster's Third New International Dictionary 249 (unabr. ed.1993) (defining "bomb" as "a ... device carrying an explosive charge fused to detonate under certain conditions") (emphasis added).

Substantial evidence supports the trial court's finding that Milner threatened to use an explosive device in or near the DES building, including the testimony of the witnesses as to the specific words spoken by Milner, Milner's dissatisfaction and anger over the denial of his claim for unemployment benefits, his threatening tone of voice, and his agitated demeanor. Therefore, we reject Milner's claim the evidence was insufficient to support his conviction.

III. Preservation of Error on Constitutional Issues.

Before we consider Milner's constitutional claims on the merits, we must first deal with the State's contention Milner failed to preserve error on these claims because they were raised in an allegedly tardy pretrial motion to dismiss. The State relies on Iowa Rule of Criminal Procedure 10(4), which provides, in part, that pretrial motions under rule 10(2) "shall be filed when the grounds therefor reasonably appear but no later than 40 days after arraignment." Milner's motion was filed fifty-five days after his arraignment.

We begin our analysis with an examination of rule 10(2):

Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:

[The rule then lists seven categories of defenses, objections, motions and requests.]

Iowa R.Crim. P. 10(2) (emphasis added). The matters included in the "must-be-raised" list do not include claims that the statute under which the defendant was charged is unconstitutional.

We interpret rule 10(2) as creating two categories of defenses and objections that are the subject of pretrial motions to dismiss: (1) those that "may" be raised by pretrial motion, and (2) those that "must" be raised by pretrial motion. To hold that a defendant must raise all objections and defenses no later than forty days after arraignment would render the list following the second sentence of section 10(2) mean...