In the Matter of the Welfare of:  A. J. H.

 This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-1455

 

In the Matter of the

Welfare of:  A. J. H.

 

Filed May 13, 2003

Affirmed in part, reversed in part, and remanded Poritsky, Judge*

 

Hennepin County District Court

File No. J501068672

 

 

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

 

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

 

 

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, Minnesota 55401 (for appellant)

 

            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Poritsky, Judge.

 

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            A.J.H. was adjudicated delinquent for possessing a BB gun on school property, in  violation of Minn. Stat. § 609.66, subd. 1d(b) (2000).  On appeal, A.J.H. argues that the district court erred: (1) in ruling that the statute imposed strict liability; (2) in finding that the evidence was sufficient to prove that he knowingly possessed a BB gun on school property; and (3) in failing to make the statutorily required findings in the dispositional order.  Because we conclude that the evidence supports the district court's finding that appellant knowingly possessed a BB gun on school property, we affirm the delinquency adjudication, without reaching the issue of whether the statute imposes strict liability.  But because the district court failed to make the requisite dispositional findings, we reverse the dispositional order and remand for the district court to make the findings required by Minn. Stat. § 260B.198, subd. 1(m) (2000), and Minn. R. Juv. P. 15.05, subd. 2(A).

FACTS

On November 7, 2001, appellant A.J.H. was driving his mother's car to Osseo High School to drop off a note explaining why he would not be attending school the next day.  As he approached the entrance to the school, A.J.H. drove through an intersection without stopping at the stop sign and proceeded to drive onto the school property.  School was not in session at the time.  Osseo police officer Christina Pomerleau saw A.J.H. drive through the stop sign.  Pomerleau followed A.J.H. onto the school grounds, activated her car's emergency lights, and stopped A.J.H. 

Pomerleau got out of her squad car, approached A.J.H., and asked A.J.H. if he had seen the stop sign. A.J.H. responded "No."  Pomerleau then requested A.J.H.'s driver's license, but A.J.H. indicated that he did not have it.  At that point, Pomerleau opened the car door and asked A.J.H. to step out of the vehicle.  Before A.J.H. got out of the car, Pomerleau began a safety check of A.J.H. and the vehicle.  Pomerleau looked at A.J.H. and then looked down into the car where she immediately saw what appeared to be a gun tucked between the driver's seat and the car door.  Pomerleau simultaneously reached for the gun and held A.J.H. in place so he would not be able to reach for the gun.  Pomerleau then placed the gun on top of the car and again requested that A.J.H. exit the vehicle.  The gun turned out to be a .177 caliber BB gun.  A.J.H. told Pomerleau that he had put the BB gun in the car several days earlier when he went to buy pellets and had forgotten the BB gun was in the car.  

A delinquency petition was filed in Hennepin County District Court alleging gross-misdemeanor possession of a BB gun on school property.  After the trial, the district court found A.J.H. guilty of possessing a BB gun on school property in violation of Minn. Stat. § 609.66, subd. 1d(b) (2000).  A.J.H. waived his right to a predisposition investigation, and at the disposition hearing, A.J.H. was placed on probation until his nineteenth birthday, ordered to perform five days of work on the Sentence to Service Program, to remain law abiding, and to have no possession of firecrackers, explosives, or guns of any kind.  Commitment to the Hennepin County Home School Beta Program and a requirement that A.J.H. complete Hennepin County's gun program were stayed on condition that he comply with all court orders.  This appeal followed. 

D E C I S I O N

I

"Whoever possesses, stores, or keeps a replica firearm or a BB gun on school property is guilty of a gross misdemeanor."  Minn. Stat. § 609.66, subd. 1d(b) (2000).  A.J.H. first argues that the district court erred when it ruled that the statute imposes strict liability, i.e., when it ruled that the prosecution need not prove that A.J.H. knowingly possessed the BB gun on school property.  He further argues that the evidence does not support the court's finding that he knowingly possessed the gun on school property.  We conclude that the district court properly found that A.J.H. knowingly possessed the gun on school property. It is therefore not necessary for us to address the issue of whether the statute imposes strict liability.

 On appeal from an adjudication of delinquency, "an appellate court is limited to ascertaining whether, given the facts and the legitimate inferences, a factfinder could reasonably make [the] determination" that each of the elements of the delinquency petition has been proved beyond a reasonable doubt.  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citation omitted).  An appellate court "must assume that the fact-finder believed the state's witnesses and disbelieved any contrary evidence."  In re T.N.Y., 632 N.W.2d 765, 768 (Minn. App. 2001) (citation omitted); see also State v. Bias, 419 N.W.2d. 480, 484 (Minn. 1988).  "We cannot retry the facts and must assume the trial court believed the prosecution's witnesses and disbelieved any contradictory evidence."  In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (citation omitted).  "It is a well-established rule that a conviction can rest upon the testimony of a single credible witness."  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).

At trial, A.J.H. admitted that he was the owner of the BB gun.  He also admitted that he had put the BB gun in the car several days before the incident.  Thus there was direct evidence that at one time, several days before he was stopped, A.J.H. knew that the gun was in the car.  Evidence was presented that A.J.H. had driven the car at least twice on the day of the incident. 

Although it is undisputed that A.J.H. knew the BB gun was in the car prior to the incident, he argues that he forgot that the gun was there and therefore the district court erred when it found that he knowingly possessed the gun when he was stopped.  We disagree.  Officer Pomerleau testified as to the location of the BB gun in the car.  She also testified that when she opened the car door, the BB gun was immediately visible in the area between the driver's seat and the car door, and that anyone driving the car would have to step over the BB gun to get into the car.  A.J.H. contends that Pomerleau's testimony cannot support the district court's finding because Pomerleau is a police officer with special training and is more observant than the average citizen.  But the BB gun was offered into evidence, and the district court had an opportunity to view the gun, to note its size, and to assess Pomerleau's testimony concerning the BB gun's apparent visibility to anyone entering the car on the driver's side. The district court obviously found that Pomerleau's testimony was credible and disbelieved A.J.H.'s testimony that he had forgotten the gun was in the car.  It is the function of the fact-finder to choose between conflicting factual accounts and determine the credibility, reliability and weight to be given to witnesses' testimony.  State v. White, 357 N.W.2d 388, 390 (Minn. App. 1984). 

A person's knowledge of a fact need not be proven by direct testimony, but may be shown by circumstantial evidence.  See State v. Siirila, 292 Minn. 1, 10, 193 N.W.2d 467, 473 (1971) (permissible inference that marijuana found in a jacket owned by defendant and worn by him was there with his knowledge).  Because the BB gun belonged to A.J.H., and he admitted that he put the BB gun in the car several days earlier, and because the BB gun was visible in a car that A.J.H. occasionally drove, the district court could have found beyond a reasonable doubt that A.J.H knew BB gun was in the car when he was stopped by the officer.  The evidence in the record clearly supports that finding, which we will not disturb.  See State v. Schluter, 653 N.W.2d 787, 793 (Minn. App. 2002) (appellate court will leave a district court's findings intact so long as they are reasonably supported by the facts in the record). 

Because we conclude that the evidence in the record reasonably supports the district court's finding that A.J.H. knowingly possessed the BB gun on school property, we need not address the issue of whether Minn. Stat. § 609.66, subd. 1d(b), imposes strict liability and relieves the state of its burden of proving knowing possession.  The district court's adjudication of delinquency is affirmed. 

II

A.J.H. next argues that the district court's disposition must be reversed because the district court failed to make written findings supporting its dispositional order.  We agree.

The district court must make written findings explaining and supporting its disposition.  Minn. Stat. § 260B.198, subd. 1(m) (2000); Minn. R. Juv. P. 15.05,        subd. 2(A).  A district court's failure to make the statutorily required dispositional findings constitutes reversible error.  In re Welfare of N.T.K., 619 N.W.2d 209, 212 (Minn. App. 2000).

The state concedes that the district court failed to make sufficient written findings to support its dispositional order. The district court's failure to make adequate written findings to support its juvenile-delinquency disposition requires reversal and remand for the court to make appropriate findings.   

Affirmed in part, reversed in part, and remanded.

 

 

 

 

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