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State v. Metzinger

Court of Appeals of Missouri, Eastern District, Fourth Division

February 24, 2015


Page 85

[Copyrighted Material Omitted]

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Appeal from the Circuit Court of the City of St. Louis. Honorable Michael W. Noble, Judge.

For appellant: Veronica E. Harwin, Assistant Circuit Attorney, St. Louis, MO.

For respondent: Ryann C. Carmody, Clayton, MO.

Patricia L. Cohen, Presiding Judge. Roy L. Richter, J., and Robert M. Clayton III, J., concur.


Page 87

Patricia L. Cohen, Presiding Judge


The State appeals from an order of the Circuit Court of the City of St. Louis dismissing with prejudice the information charging Robert Metzinger (Defendant) with making a terrorist threat under Section 574.115.[1]

Page 88

The State claims that the trial court erred in dismissing the information because: (1) the information followed the wording of MACH-CR 28.30, charged the statutory elements of the offense, and apprised Defendant of the facts constituting the elements of the offense charged; (2) the trial court did not have authority to dismiss the information for insufficiency with prejudice; and (3) the trial court improperly considered whether Defendant's communications constituted " true threats." We affirm.

Factual and Procedural Background

The State charged Defendant with making a terrorist threat in violation of Section 574.115.1(4)[2] based on the following four " tweets" published on Twitter, the social media network:[3]

o October 21, 2013: Going to be tailgating with a #PressureCooker during games 3-4-5 in #STL during #WorldSeries. #STLStrong #GoCards #postseason from Springfield, MO.
o October 22, 2013: Putting my loft up for ridiculous " Boston-only" rate on @airbnb for the #WorldSeries. Pressure cooker sold separately.
o October 22, 2013: The #WorldSeries will be another finish line not crossed by #Boston.
o October 25, 2013: Listening to the Offspring's " Bad Habit" and the lyrics just ring true of what will go down very soon.[4]

The information, charging Defendant with a class A misdemeanor, provided as follows:

[O]n or between October 21, 2013 and October 25, 2013, in the City of St. Louis, State of Missouri, the defendant knowingly communicated to the public a threat to cause an explosion, an incident involving danger to life, by tweeting repeated messages involving the detonation of an explosive device, and the defendant did so with criminal negligence with regard to the risk of causing the closure of any portion of Busch Stadium, a place of assembly.

Defendant filed a motion to dismiss the information pursuant to Rule 24.04(b)(2).[5]

Page 89

In his motion, Defendant claimed that " the information does not, and cannot, allege all essential elements of section 574.115" because Defendant's " sarcastic posts on Twitter did not constitute 'true threats' as a matter of law and cannot be punished by the State." More specifically, Defendant argued that the information was insufficient because it failed to: " identify which tweets the State intends to argue were threatening" ; allege that Defendant communicated a " true threat" ; and allege that Defendant's speech " created a substantial and unjustifiable risk of the evacuation of Busch Stadium." Defendant stressed that his tweets " express[ed] insensitive sarcasm, competition, and overt trash talking" in the excitement surrounding the Major League Baseball World Series, but did not communicate " any threat, let alone a 'true threat.'" (emphasis in original).

The State filed a response to Defendant's motion, in which it identified the " four specific tweets that are relevant to this case" and asserted that the information alleged " all essential elements of Section 574.115." The State further contended that a jury should decide whether the tweets " were in fact a threat . . . not a question of law to be decided by the Court . . . ."

On February 28, 2014, the trial court held a hearing on Defendant's motion to dismiss. Defendant contended, among other things, that the tweets failed to constitute a " true threat" and argued that Defendant was " protected by the First Amendment because it's not a threat." The State responded, among other things: " . . . the context of a tweet with Boston coming to the World Series, and mentioning pressure cooker, the same explosive device that was used, and saying the finish line won't be crossed, which is where the bomb was placed at the Boston Marathon, that makes this in the context a threat." Finally, the State advised the trial court that: " You can't joke about setting off a pressure cooker bomb after the Boston Marathon."

After hearing both parties' arguments, the trial court stated:

I do not find any of the tweets, in totality, even if you throw the music lyrics on top of it, rising even remotely to the level of a true threat or an implied threat. . . .
These are untimely ramblings, that upon his inner circle advising him of the ridiculousness of them, he sought to pull them off prior to any intervention from any outside source. Therefore, I don't believe they're true threats or implied threats.

The same day, the trial court entered the following order: " Parties appeared. Motions heard. Fails to allege an element of Section 574.115 RSMo. Defendant's messages were not true threats. Motion to dismiss granted with ...

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