State v. Jason W. Kasten

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 26, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2069-CR Cir. Ct. No. 2018CF335

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON W. KASTEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Walworth County:
PHILLIP A. KOSS, Judge. Affirmed.

Before Reilly, P.J. Gundrum and Davis, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP2069-CR

¶1 PER CURIAM. Jason Kasten appeals from a judgment convicting
him of bomb scares and disorderly conduct, both as a repeater. On appeal, he
argues that his due process rights were violated when law enforcement failed to
request and preserve video surveillance footage from the crime scene, and a new
trial is required because the circuit court misapplied the law requiring that a bomb
scare must be a “true threat.” We disagree and affirm.

¶2 Kasten pled guilty to disorderly conduct, but he had a bench trial on
the bomb scares charge, WIS. STAT. § 947.015 (2017-18).1 Section 947.015
states: “Whoever intentionally conveys or causes to be conveyed any threat or
false information, knowing such to be false, concerning an attempt or alleged
attempt being made or to be made to destroy any property by the means of
explosives is guilty of a Class I felony.” The statute has been construed to apply
only to “true threats.” State v. Robert T., 2008 WI App 22, ¶16, 307 Wis. 2d 488,
746 N.W.2d 564. The following legal standard is applied to determine whether a
defendant made a “true threat:”

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.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP2069-CR

Id., ¶11, quoting State v. Perkins, 2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d
762. To determine whether a true threat has been made, “the trier of fact should
consider the full context of the statement, including all relevant factors that might
affect how the statement could reasonably be interpreted.” Perkins, 243 Wis. 2d
141, ¶31.

¶3 The foregoing was the law to be applied to the facts found by the
circuit court. We conclude that the court’s findings are supported in the record,
and credibility determinations were for the circuit court to make. State v.
Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651
N.W.2d 345 (citation omitted) (the circuit court “is the ultimate arbiter of the
credibility of the witnesses and the weight to be given to each witness’s
testimony”).

¶4 The circuit court deemed credible the testimony of K.S., a director of
operations who happened to be at the Burger King conducting a manager training
session when Kasten had a workplace disagreement with his supervisor, R.B. R.B
involved K.S. in her conflict with Kasten because Kasten was throwing things,
acting very aggressively and was, as R.B. described him, “out of control.” As
K.S. encountered Kasten, he told her, “I’m going to blow this fucking place up.”
At that point, K.S. told R.B. they had to call the police. When Kasten made this
threat, K.S. believed he was serious and he made her nervous, particularly because
Burger King uses gas broilers. K.S. observed customers leaving the premises after
Kasten’s threat.

¶5 The circuit court found that even though Kasten made the bomb
threat intentionally, he did not intend to blow up the building, i.e., Kasten believed
the threat was false. Kasten made that threat within K.S.’s hearing, and she

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No. 2019AP2069-CR

reacted to the threat with great concern. To these facts the court applied the “true
threat” analysis:

I don’t think it’s hyperbole. It’s certainly not jest. It’s not
innocuous. It’s not a political view. But it’s incongruent
with a false threat. So I think that’s where the appeal may
lie. But it’s not hyperbole. I think he said it in anger.
Maybe he didn’t mean it later, but he said it to scare them,
and under the statute that seems to be enough. So for that
reason, I believe the state has proven this beyond a
reasonable doubt.

¶6 On appeal, Kasten challenges the circuit court’s application of the
“true threat” legal standard to the evidence adduced at trial, claiming that the
circuit court applied a subjective standard rather than the required objective
standard. In concluding that the circuit court applied the proper legal standard to
the facts, we look to Robert T.

¶7 In Robert T., the defendant telephoned the police with a bomb threat
directed at the high school he attended. Robert T., 307 Wis. 2d 488, ¶2. After
being identified on the school’s surveillance footage as the caller, the defendant
admitted making the call because “[h]e was bored.” Id. In rejecting the
defendant’s claim that he did not make a true threat, the court noted that “the
police who responded to Robert T.’s phone call believed the threat was real. Also,
Robert T. apparently intended to frighten the listener; thus, his call appears to
fall within the ambit of a ‘true threat.’” Id., ¶16.

¶8 As in Robert T., Kasten made a bomb threat, and the circuit court
could have reasonably inferred under all of the circumstances that Kasten “would
reasonably foresee that a listener would reasonably interpret as a serious
expression of a purpose to inflict harm.” Id., ¶11 (citation omitted). K.S., who
had experienced the totality of the circumstances, including Kasten’s aggressive

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No. 2019AP2069-CR

and out-of-control demeanor, reacted to the threat with alarm and the police were
summoned. The court applied the correct legal standard, and that standard was
satisfied by the court’s findings. Kasten’s grounds for a new trial are not
supported in the record.

¶9 Kasten next argues that the circuit court should have granted his
motion to dismiss due to a due process violation arising from the State’s alleged
failure to preserve apparently or potentially exculpatory evidence: the surveillance
video from the Burger King cameras.

¶10 In order to prevail on his due process claim, Kasten had to show
“that that evidence was either apparently exculpatory or that the State acted in bad
faith by destroying evidence that was potentially exculpatory.” State v. Luedtke,
2015 WI 42, ¶41, 362 Wis. 2d 1, 863 N.W.2d 592. Whether Kasten established a
due process violation presents a question of law we decide independently of the
circuit court. Id., ¶37. We accept the circuit court’s findings of fact as long as
they are not clearly erroneous. Id.

¶11 In relation to Kasten’s motion to dismiss, operations director K.S.
testified that there was video surveillance at the Burger King, and she knew how
to retrieve video from it. However, the cameras neither captured audio nor
covered the hallway between the register area and the back of the restaurant.
Kasten made the threat while in that hallway, out of sight of the video cameras.
Burger King retains video footage for thirty days from its recording date, and the

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No. 2019AP2069-CR

video of the day in question no longer exists.2 K.S. did not recall if she was asked
by law enforcement for access to the video. The investigator testified that he
never viewed any video from the Burger King and was not aware that video ever
existed.

¶12 The circuit court found that Kasten did not show that the State acted
in bad faith because the video was never within the State’s control, and there was
no evidence as to whether the video was exculpatory. Furthermore, in the absence
of audio and in the presence of Kasten’s concession that he made the threat and
engaged in disorderly conduct, the video, even if it had existed and had been
collected during the investigation, would have added little information to the case.

¶13 The circuit court’s findings of fact are supported in the record and
are not clearly erroneous. We agree with the circuit court that there is no evidence
of any apparent or potential exculpatory value to the video because the video
lacked audio and did not cover the area where Kasten made the threat. Kasten
offered no evidence of bad faith, i.e., that the investigator was “aware of the
potentially exculpatory value or usefulness of the evidence [the investigator] failed
to preserve” or that the investigator “acted with official animus or made a
conscious effort to suppress exculpatory evidence.” Id., ¶46 (citation omitted).
Finally, law enforcement does not have “an undifferentiated and absolute duty to
retain and to preserve all material that might be of conceivable significance in a
particular prosecution.” Id., ¶44 (citation omitted).

2
The incident occurred on April 24, 2018; the criminal complaint was generated on or
about June 12, 2018, after a charging decision was made. The complaint was filed on July 2,
2018. The video would no longer have been available by the time the State generated the
complaint.

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No. 2019AP2069-CR

¶14 Kasten did not meet the Luedtke requirements to show a due process
violation. Therefore, the circuit court did not err when it denied Kasten’s motion
to dismiss.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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