Tywon T. Beasley, petitioner, Appellant, vs. Connie Roehrich, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

In the Matter of the Welfare of:
 
C.R.S.

Hennepin County District Court

File No. J39953439

William E. McGee, Fourth District Public Defender, Renée Bergeron, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant C.R.S.)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Mary Martin Lynch, Paul R. Scoggin, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

FORSBERG, Judge

            On appeal from an adjudication of delinquency, appellant C.R.S. argues that the trial court erred in denying her motion to dismiss the charge of possession of a dangerous weapon on school property because a box cutter is not a dangerous weapon within the meaning of Minn. Stat. § 609.02, subd. 6.  C.R.S. also argues that the state failed to prove beyond a reasonable doubt that she committed the crimes of possession of a dangerous weapon and damage to property.  Because C.R.S. intended to use the box cutter in such a manner that was likely to produce great bodily harm, and because there was sufficient evidence to support her adjudication, we affirm.

In March 1999, at Northeast Middle School, two seventh-grade boys told school authorities that C.R.S. was "cutting" into the floor of their school gymnasium with a box cutter (a utility knife with a retractable blade) and threatened to cut off their genitals.  When the boys went to tell the teacher about what had happened, they stated that C.R.S. handed the box cutter to another girl and both left the gym.  When the principal and assistant principal questioned C.R.S., she denied ever having the box cutter or making the threats.  They searched her, but did not find the box cutter. 

In the downstairs hallway, the school authorities approached the other girl, L.W., to whom C.R.S. allegedly had passed the box cutter.  L.W. admitted to having the box cutter and was charged with possession of a dangerous weapon.

Subsequently, police arrested and charged C.R.S. with one count of possession of a dangerous weapon on school property in violation of Minn. Stat. § 609.66, subd. 1d(a) (1998), and one count of damage to property in violation of Minn. Stat. § 609.595, subd. 2(a) (1998).

At the adjudication hearing, the court heard testimony from several witnesses: one of the seventh-grade boys testified that C.R.S. threatened him with physical harm while she was holding the box cutter; a student testified that she saw C.R.S. cutting into the floor and overhead C.R.S. threatening one of the boys; and an assistant principal testified that she was called to the scene and found markings on the gym floor that caused damage in the amount of $265.

            C.R.S. moved to dismiss the count of possession of a dangerous weapon on school property, arguing that the box cutter did not meet the definition of a "dangerous weapon" under Minn. Stat. § 609.02, subd. 6 (1998).  The court denied the motion, finding that under the circumstances the box cutter was a dangerous weapon "just by virtue of the fact that there is no need to have a box cutter in gym class" and that a box cutter "can be a deadly instrument when wielded with intent to create injury to a person."

At the conclusion of the proceedings, the court found that C.R.S. had possessed the box cutter and had marked up the gym floor.  It also found that C.R.S. had threatened the two boys with injury.  Based on these findings, the court concluded that the state had proven its petition beyond a reasonable doubt as to both charges. 

D E C I S I O N

In a delinquency adjudication, the state must prove beyond a reasonable doubt "every fact necessary to constitute the charged crime."  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)).  On appeal, the reviewing court "is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination."  Id. (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)). 

1.         Dangerous Weapon

C.R.S. argues that under the circumstances of the case, the box cutter was not a dangerous weapon. The statute under which the court adjudicated C.R.S. delinquent defines a dangerous weapon as

any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, * * * or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm. 

Minn. Stat. § 609.02, subd. 6.  Even though a box cutter is not designed as a weapon, if the manner in which C.R.S. used or intended to use the box cutter is calculated or likely to produce great bodily harm, it meets the statutory definition of a dangerous weapon for purposes of the possession charge.  See State v. Moss, 269 N.W.2d 732, 736 (Minn. 1978).  Notwithstanding C.R.S.'s failure to actually use the box cutter to carry out her threat, there is sufficient evidence from which the trial court could infer that C.R.S. had possession of the box cutter and expressed an intent to use it.  See id. (concluding even though defendant did not use scissors while committing armed robbery, there was sufficient evidence to infer that he intended to use them if necessary).  Thus, C.R.S.'s threats of physical injury while holding the box cutter constitute intent to use.

Because C.R.S. was not using the box cutter for its intended purpose and made threats of physical harm while holding the device, it was not unreasonable for the trial court to have found that the box cutter was a dangerous weapon under the circumstances.

2.         Sufficiency of the Evidence

C.R.S. contends that there is reasonable doubt as to the identity of the person who possessed the box cutter, made the threats, and damaged the gym floor.  According to trial testimony, however, two witnesses saw C.R.S. cutting into the floor and heard her threats, and the assistant principal stated that the markings on the floor caused damaged in the amount of $265.  Only C.R.S. testified that she did not possess the box cutter, make markings on the floor, or threaten the boys with it.

It is for the trier of fact to determine the credibility of witnesses and the weight given to their testimony.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  This court views the evidence in the light most favorable to the state and assumes that the trier of fact "believed the state's witnesses and disbelieved any contrary evidence."  Id.  On the facts of this case, there was sufficient evidence to conclude that C.R.S. made the markings in the floor and threatened the boys with physical harm.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.