State v. Rezac, A19-0294

CourtCourt of Appeals of Minnesota
Writing for the CourtBratvold, Judge
PartiesState of Minnesota, Respondent, v. Joseph Frank Rezac, Appellant.
Decision Date18 February 2020
Docket NumberA19-0294

State of Minnesota, Respondent,
v.
Joseph Frank Rezac, Appellant.

A19-0294

STATE OF MINNESOTA IN COURT OF APPEALS

February 18, 2020


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed
Bratvold, Judge
Dissenting, Worke, Judge

Stearns County District Court
File No. 73-CR-18-1984

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Bratvold, Judge.

UNPUBLISHED OPINION

BRATVOLD, Judge

In this direct appeal from a judgment of conviction of threatening to commit a crime of violence, appellant seeks reversal, arguing that the evidence is insufficient to support his

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conviction, and that the district court erred by refusing to suppress evidence that law enforcement obtained without a warrant from a social-networking website and wireless service provider. We first analyze whether the record has sufficient evidence to support appellant's conviction and conclude that it does. On the suppression issue, we assume that a search occurred because that was the state's position in district court. We then determine that the state established exigent circumstances supporting a warrantless search. Thus, we affirm.

FACTS

On March 6, 2018, at 2:40 p.m., a staff member at MeetMe.com (MeetMe) forwarded to the St. Cloud Police Department an internet post from a user in St. Cloud, who was later identified as appellant Joseph Frank Rezac. In the post forwarded by MeetMe, Rezac wrote seven sentences in the early morning of March 6, 2018:

You cannot tell me what to do. I will find a soul mate. I will seduce her then I will only show her the cruel[]ty in me so that she will leave me. As if she was forced to. I will still be bonded to her when she is gone and I shoot up a mall killing at least 20 people and killing myself. My last words will be, "You were my only reason to try to be a better person. You're gone now so all the reasons to be like this are back."

MeetMe later gave police a report, in which it described itself as "a social networking service on the [i]nternet and [s]martphones where visitors create personal profiles, post photographs, and socialize with each other via instant messenger, and various message board environments."

An officer later testified that MeetMe staff said they were "concerned" about the post "enough to notify" police and that they were "afraid that something was going to

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happen." MeetMe staff also gave police the name on the account that created the post, Corvo Volker, along with Volker's public profile information: he is 23 years old and lives in St. Cloud.

Police sent one marked squad car to the Crossroads Mall, which is the only mall in St. Cloud, "in case something did happen." Officer Day and investigator Bluhm were asked to immediately shift from other assignments because "[t]he possible threat talked about hurting himself, hurting others. Actually, mass violence." Day and Bluhm tried "to figure out who had posted it so we could go make contact with him and hopefully stop this, if it was going to happen."

When Day was unable to find a "Corvo Volker" in city or police records or on Facebook, he contacted MeetMe for more information. Within minutes, MeetMe provided a written report that included the post and Volker's internet protocol (IP) address, which is "used to identify electronic devices that are accessing the [i]nternet." Day then accessed a public website to find the internet service provider (ISP) that owns the IP address, a wireless company. Although closed for the business day, the ISP responded to Day's request and gave him a street address in St. Cloud and Rezac's name, which was on the account.

Within about two hours of MeetMe's fax, Day, Bluhm, and two other officers went to see Rezac, who lives in a group home. Rezac agreed to meet with officers in the home's office. Rezac allowed officers to pat him down, and Day found no weapons. After Bluhm read Rezac his Miranda rights and asked him if he would speak with her, Rezac responded that he would "like to know what's going on, yes." Rezac admitted being on MeetMe's

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website and responded "yes" when Bluhm asked if he knew "a threat that was made." Rezac then declined to say what he meant, so Bluhm read the entire post aloud. Rezac admitted he wrote the post.

Bluhm asked Rezac to "tell [her] about that," and Rezac responded:

Um, I don't have a soul mate and I don't intend to have one. Um, if someone was going to shoot up a mall that would be a horrible thing to do. And I actually said that so it would have some punch um, it was uh, an observation against—I guess the . . . the idea that anything mattered uh, romantically um, it . . . it was a very dark uh, thing that I wrote intentionally . . . .

When Bluhm asked if he was "looking to hurt people," Rezac responded, "No. I'm actually not. Like I said that was implied on the uh, soulmate comment that if I found a soulmate. I'm not looking for a soulmate. And I'm not looking to shoot up a mall." When asked to explain what he meant by "punch," Rezac responded, "So people will notice."

The state charged Rezac with one count of threatening to commit a crime of violence under Minn. Stat. § 609.713, subd. 1 (2016). Rezac moved to dismiss, arguing that the state lacked probable cause, his speech "ruminat[ed] about finding and losing a soulmate" and so was protected under the First Amendment, and that police obtained his account information without a subpoena and in violation of his constitutional rights. The state opposed, and the district court denied the motion in a written order.

Rezac's jury trial occurred on November 20, 2018. Day and Bluhm testified to the facts summarized above, and Rezac's police statement was played for the jury.1 Rezac

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testified on his own behalf. Initially, he explained that he lives in a group home and has autism spectrum disorder. Rezac testified that, on March 6, 2018, he used his smartphone to access MeetMe's website and join an internet discussion "about true love being able to solve any problem. And I disagreed with that concept." When asked about his post, Rezac testified that he wrote "a scenario in which true love would be a catalyst for a problem instead of the solution for one." Rezac testified that he wrote this "dark" post because "[w]hen I was about 14 years old, my grandfather actually committed suicide the day before his divorce would have been finalized. And I see that as a real life example where true love was actually very detrimental."

On cross-examination, Rezac agreed that he wrote the post, as alleged by the state, and that the post did not include anything about his grandfather. But Rezac also testified that police would not see the post as a threat "upon clarification," and he "personally" did not consider the post to be a threat. Rezac agreed that, without clarifying information, a reader of his post would not have known that he did not intend to threaten or harm anyone. Rezac added, "Which is why I gave clarification to the police."

The jury found Rezac guilty. The district court then convicted Rezac and imposed a guidelines stayed sentence of one year and one day with 260 days' credit for time served. Since the 260 days satisfied Rezac's required time in custody, Rezac asked the district court to execute his sentence and the district court granted his motion. This appeal follows.

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DECISION

I. The record evidence is sufficient to support Rezac's conviction of threatening to commit a crime of violence.

Generally, when reviewing the sufficiency of the evidence, this court reviews the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to support the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). But we apply "heightened scrutiny" when a conviction is based in whole or in part on circumstantial evidence. State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn. 2010); see also State v. Smith, 825 N.W.2d 131, 137 (Minn. App. 2012) (applying circumstantial-evidence test to sufficiency challenge on a terroristic-threats conviction), review denied (Minn. Mar. 19, 2013).

We scrutinize the circumstantial evidence in Rezac's case by following two steps. The first step is to "identify the circumstances proved," giving deference "to the jury's acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State." Al-Naseer, 788 N.W.2d at 473 (quotation omitted). In identifying the circumstances proved, we "winnow down the evidence presented at trial by resolving all questions of fact in favor of the jury's verdict, resulting in a subset of facts that constitute the circumstances proved." State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017) (quotation omitted). We "disregard evidence that is inconsistent with the jury's verdict." Id. at 601.

In the second step, we "examine independently the reasonableness of all inferences that might be drawn from the circumstances proved." Al-Naseer, 788 N.W.2d at 473-74.

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We give "no deference to the fact finder's choice between reasonable inferences." Id. at 474. We only consider the "reasonable inferences that can be drawn from the circumstances proved, when viewed as a whole." Harris, 895 N.W.2d at 601. If a reasonable inference inconsistent with guilt arises, this creates a "reasonable doubt." Al-Naseer, 788 N.W.2d at 474. But "possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable." State v. Stein, 776 N.W.2d 709, 719 (Minn. 2010).

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