In the Matter of the Welfare of: J.R.J.

In the Matter of the Welfare of: J.R.J. A05-902, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-902

 

In the Matter of the Welfare of: J.R.J.

 

Filed May 9, 2006

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. JX03066677

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

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

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his adjudication of delinquency for two counts of second-degree assault and the finding that he committed terroristic threats.  He argues that (1) there is insufficient evidence to support the determination that he committed the offenses; (2) he was denied a fair trial because the juvenile court relied on inadmissible character evidence; (3) the juvenile court failed to make required findings; and (4) the juvenile court erred by rescinding an order granting a new trial.  We affirm.

FACTS

 

            As a result of appellant J.R.J.'s activities on the day after his father bought him a BB gun that looks like a real handgun, a delinquency petition was filed charging appellant, in relevant part, with second-degree assault against a police officer (Garcia), terroristic threats against Garcia, and second-degree assault against T.R.[1]  J.R.J. had two encounters with T.R. on the day in question, one during a basketball game in which T.R. was shot in the lip, and the other, later in the afternoon at T.R.'s home, where appellant shot at the door of the home while T.R. and her brother were sitting on the steps in front of the door.  The encounter with officer Garcia occurred in the evening when Garcia and another police officer went to appellant's home to investigate the shootings at T.R.'s home.  The juvenile court found that appellant opened the door to the officers' knock with the realistic-looking BB gun in his hand pointed directly at Garcia.

            All of the charges in the delinquency petition were tried together.[2]  After several days of testimony from numerous witnesses, the district court concluded that the state had proved beyond a reasonable doubt that appellant committed the acts charged and adjudicated appellant delinquent for two counts of second-degree assault and one count of carrying a BB gun in public.

            At a later trial of appellant's father, who was also involved in the encounter with Garcia, Garcia's testimony contradicted some of his testimony in appellant's trial.  Appellant moved for a new trial on the assault charges, arguing that Garcia's changed testimony brought into question Garcia's credibility, which had been a key factor in the adjudications.  The juvenile court granted appellant's motion.  The state moved for reconsideration, arguing that the juvenile court had applied the wrong standard in granting a new trial and that appellant was only entitled to an evidentiary hearing on his motion for a new trial.  The juvenile court agreed, vacated the order for a new trial and held that appellant was entitled to an evidentiary hearing.  Appellant had not requested an evidentiary hearing, and no hearing was scheduled.  Approximately four months later, appellant moved for an evidentiary hearing on the issue of whether the police officers presented false testimony at his trial.  The state opposed the motion as untimely and as failing to raise a factual dispute.  The juvenile court denied the motion and denied appellant's subsequent request for reconsideration.  This appeal followed.

D E C I S I O N

 

            On appeal from a determination that each of the elements of a delinquency petition has been proven beyond a reasonable doubt, this court is "limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination."  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing State v. Merrill,274

N.W.2d 99, 111 (Minn. 1978)).  "We cannot retry the facts, but must take the view of the evidence most favorable to the state and must assume that the [factfinder] believed the state's witnesses and disbelieved any contradictory evidence."  Merrill, 274 N.W.2d at 111.

            "Whoever assaults another with a dangerous weapon" commits assault in the second degree.  Minn. Stat. § 609.222, subd. 1 (2002).  An assault is "[a]n act done with intent to cause fear in another of immediate bodily harm or death," or "the intentional infliction of or attempt to inflict bodily harm on another."  Minn. Stat. § 609.02, subd. 10(1), (2) (2002).  "With intent to" and "intentionally" mean that the actor has a purpose to do the thing or cause the result specified, or believes that the act will cause the result if successful.  Id., subd. 9(3), (4) (2002).  "Intentionally" also requires that "the actor must have knowledge of those facts which are necessary to make the actor's conduct criminal and which are set forth after the word ‘intentionally.'"  Id., subd. 9(3).  Intent can be logically inferred from circumstantial evidence, including the offender's conduct, the character of the assault, and events occurring before and after the crime.  Davis v. State,595 N.W.2d 520, 525-26 (Minn. 1999).  When an adjudication is based on circumstantial evidence, the adjudication will be sustained on appeal if the reasonable inferences from such evidence are consistent only with a finding that the juvenile committed the crime and inconsistent with any other rational hypothesis.  See generally State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

I.          Sufficiency of evidence

            1.         Assault against Garcia

            The juvenile court relied on the testimony of officer Garcia and his partner that appellant pointed a gun at Garcia when appellant opened the door to his home and on the testimony of a neighbor who heard the officers say right after the incident that appellant should not have opened the door with a gun. 

            Appellant concedes that his BB gun qualifies as a dangerous weapon, but asserts that the evidence was insufficient to prove intent.  Appellant, and others, testified that the officers failed to identify themselves after knocking on appellant's door.  Appellant contends that because he did not know who was knocking or where the person was standing at the time he opened the door, he could not have intended to point a gun at Garcia.[3]  Appellant relies on In re Welfare of T.N.Y., 632 N.W.2d 765 (Minn. App. 2001), but in that case, T.N.Y. did not point his gun at the police officers, making the case distinguishable.  Id. at 769-70 (specifically noting that "[p]ointing a weapon at a police officer or another person has been held to supply the requisite intent to cause fear"); see also State v. Courtney, 682 N.W.2d 185, 198 (Minn. App. 2004) (stating evidence of intent sufficient based on testimony that defendant aimed gun directly at officer), rev'd on other grounds, 696 N.W.2d 73 (Minn. 2005). 

            The evidence in this case was contradictory and came down to a credibility determination.  Appellant argues that the district court clearly erred by finding the officers' testimony more credible than that of appellant and defense witnesses' testimony.  "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.  Although appellant reargues the credibility determination on appeal, we decline to second-guess the credibility determination made by the juvenile court in this case.

            Appellant argues that even if the district court did not find his testimony credible, the district court in this case erroneously shifted the burden to appellant to prove his innocence.  Appellant relies on In re Welfare of S.S.E., 629 N.W.2d 456 (Minn. App. 2001).  In that case, the juvenile court found that S.S.E. committed theft after stating that it found the juvenile's explanation "hard to believe."  Id. at 462.  This court reversed, concluding that the circumstantial evidence included evidence that various people had access to missing money, that no witnesses saw S.S.E. take the money, that S.S.E. did not confess, and that no tangible or direct evidence pointed to S.S.E.'s guilt.  Id.

            Appellant and others in this case testified that appellant had a cordless telephone, not a gun, in his hand when he opened the door.  Appellant testified that his gun was tucked into the waistband of his pants when he opened the door.  In adjudicating appellant for the assault on Garcia, the juvenile court stated:

[T]he Court finds that it is not a reasonable doubt to believe that the police . . . started shooting in the house based upon seeing either the cordless phone in his hand or upon seeing the replica firearm in his waistband.  And that, in fact, the police officers' testimony . . . was more credible. . . . [The neighbor] . . . overheard . . . the police saying you don't point a gun out of your house.  It appears to me that the belief that [appellant] pointed the gun out of the house and pointed the gun . . . in the direction of the officers is what led to the resulting behavior by the officers.

 

At the disposition hearing, the juvenile court stated:

Initially it was difficult for me to believe that anyone would really just open the door and point a gun . . . out the door . . . . But I now believe that [appellant] would do that because it's the same person that was brandishing the gun and shooting off the gun to neighbor kids earlier.  It was more incredible for me to believe that the police officers would either mistake the big black cordless phone or that they would start shooting based upon seeing the BB gun in his waistband.  So the Court found in weighing the credibility that the testimony of the police was more credible.

 

The direct evidence, found credible by the district court,[4] that appellant pointed the BB gun directly at Garcia, distinguishes this case from S.S.E.  The only reasonable inference from such evidence is that appellant intended to cause fear of immediate bodily harm or death.[5]  The district court did not shift the burden of proof to appellant.

            Because we affirm the adjudication of delinquency for second-degree assault against Garcia, we do not reach appellant's argument that the evidence was insufficient to find that he committed terroristic threats against Garcia.  Appellant was not adjudicated on the terroristic-threats count of the petition because it was part of the same behavioral incident as the assault.

            2.         Assault against T.R.

            The district court found that the state proved beyond a reasonable doubt that appellant committed second-degree assault against T.R.  There was a great deal of conflicting evidence about what occurred during the basketball game when T.R. was shot in the lip.  T.R.'s brother testified that appellant and another boy (M.) arrived at the game "shooting at each other.  Sort of playing around, and then they shot at us."  Appellant testified that M. shot at a garage and the BB ricocheted off the garage and hit T.R. in the lip.  T.R. told some people after the shooting that appellant had shot her, but testified that M. shot her in the lip at the basketball game using appellant's BB gun and appellant shot her later in the afternoon, at her house.  T.R.'s brother testified that appellant stood near T.R. at the basketball game and said twice, "Do you think I'll shoot you?"  Appellant denied threatening T.R. with the BB gun.  Appellant admitted that when he went to

T.R.'s house later in the afternoon, he was shooting the BB gun in the direction of T.R., her brother, and another youth.  Although the district court's findings on the record regarding this count are not a model of clarity, the district court referred to M.'s use of appellant's BB gun as well as appellant's own use of his BB gun to find beyond a reasonable doubt that appellant "aided and abetted in using the dangerous weapon, that being the BB gun, in assaulting [T.R.]."

            "A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."  Minn. Stat. § 609.05, subd. 1 (2002).  The supreme court has stated that:

A criminal defendant's intent may be inferred from the defendant's presence, companionship, and conduct before, during, and after the commission of the offense.  However, inaction, mere knowledge, or passive acquiescence do not satisfy the requirements for accomplice liability. . . . The state proves accomplice liability by showing that the defendant had a knowing role in the commission of the crime and did nothing to thwart its completion.

 

State v. Arrendondo, 531 N.W.2d 841, 845 (Minn. 1995) (citation omitted).  There were many versions of what occurred at the basketball game and several versions of what occurred later at T.R.'s house, but there is evidence in the record that appellant was shooting his BB gun at both locations, that M. was shooting appellant's BB gun when T.R. was shot in the lip, and that appellant threatened T.R. with the BB gun.  Viewed in the light most favorable to the determination, a fact-finder clearly could conclude that appellant committed or aided and abetted the commission of second-degree assault against T.R.

II.        Evidentiary issues

            "Absent an erroneous interpretation of the law, whether to admit or to exclude evidence is a question within the district court's discretion."  State v. Tate, 682 N.W.2d 169, 175-76 (Minn. App. 2004) (citing State v. Buggs, 581 N.W.2d 329, 334 (Minn. 1998)), review denied (Minn. Sept. 29, 2004).  "‘Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error.'"  State v. Heath, 685 N.W.2d 48, 57 (Minn. App. 2004) (quoting Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997)), review denied (Minn. Nov. 16, 2004), cert. denied, 126 S. Ct. 178 (2005).  If an evidentiary ruling violates an appellant's constitutional rights, the appellate court must determine if the error was harmless beyond a reasonable doubt.  State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998).  "To determine if the errors were harmless, we must look to the basis on which the [fact-finder] rested its verdict and determine what effect the errors had on that verdict."  Id.  "If the verdict actually rendered was surely unattributable to the errors, the errors are harmless beyond a reasonable doubt."  Id.  "Appellant is entitled to a new trial if the errors, when taken cumulatively, had the effect of denying appellant a fair trial."  Id. 

           

            1.         Severance

            Appellant argues that the juvenile court's reliance on inadmissible character evidence denied him a fair trial.  Part of appellant's argument is that the juvenile court erred by failing to sever the charges involving Garcia from the charges involving T.R. for trial.  But appellant concedes that he did not submit a timely request for severance and did not object to the manner in which evidence of his conduct was offered regarding the various counts.  At trial, counsel for appellant stated: "There are four counts in the petition.  They are talking about two different events on the same day.  We have agreed . . . that we would try them all together because there is some overlap.  There are some people who are involved in both events . . . ."  Generally, a reviewing court will not decide issues not raised before the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            Even if we were to address the issue of severance, we conclude that the district court did not err.  We note that the supreme court has stated that if courts "conclude the joined offenses do not constitute a single behavioral incident or course of conduct, they are to sever the charges."  State v. Profit, 591 N.W.2d 451, 461 (Minn. 1999), cert. denied, 528 U.S. 862 (1999); see also Minn. R. Juv. Delinq. P. 13.08, subd. 2(a).  "In determining whether there should be separate trials for separate charges, we look to how the offenses were related in time and geographic proximity and at whether the actor was motivated by a single criminal objective."  Profit, 591 N.W.2d at 460 (quotation omitted).  Because appellant agreed at the time of trial that the incidents were sufficiently interrelated to be tried together and because the offenses all involved appellant's brandishing of his new BB gun on the same day in the same neighborhood, we conclude that the juvenile court did not err by failing to sua sponte sever the counts against Garcia from the count against T.R.

            2.         Character evidence

            Appellant next argues that the juvenile court abused its discretion by considering his behavior against T.R. in determining his credibility and culpability with regard to the charges involving Garcia.  Appellant argues that the juvenile court's failure to ignore such evidence was so prejudicial that his failure to object at trial should not forfeit his remedy.  Because we have found no error in the juvenile court's failure to sever the counts for trial, we find no merit in appellant's arguments.  Furthermore, as the state argues, evidence of each offense would most likely have been admissible Spreigl evidence in both trials even if the matters had been severed.  Evidence that appellant intentionally pointed a gun in one incident would have been relevant and material to show motive, or absence of mistake or accident in the other incident.  See State v. Doughman, 384 N.W.2d 450, 454 (Minn. 1986) (stating that evidence of prior bad act is admissible if there is clear and convincing evidence that defendant participated in the other offense, the evidence is relevant and material to the state's case, and the probative value is not outweighed by its potential for unfair prejudice); see also Minn. R. Evid. 404(b) (stating that evidence is admissible to show motive or absence of mistake or accident).[6]  Under the circumstances of this case, the juvenile court did not abuse its discretion in considering, chronologically, all of appellant's behavior on the day in question in reaching its determinations.

III.       Lack of written findings

            Appellant claims that he was denied due process of law by the juvenile court's failure to make written findings of the facts supporting adjudication. 

Within seven (7) days of the conclusion of [a juvenile delinquency] trial, the court shall find that the allegations in the charging document have or have not been proved beyond a reasonable doubt. . . . Findings may be made on the record, but must be followed up in writing . . . .

 

Minn. R. Juv. Delinq. P. 13.09.  Although the rule clearly contemplates written findings even when, as in this case, the juvenile court made findings on the record, there is no authority for appellant's assertion that violation of the rule denied due process or prejudiced him in any way and no authority for the proposition that failure to make the required findings mandates reversal.  Additionally, the rule does not require particularized findings as required for dispositions under Minn. R. Juv. Delinq. P. 15.05, subd. 2.  In this case, the record contains a document entitled "Court Order and Title IV-E Findings" noting the finding of "adjudication of delinquency" and all of the

information required by Minn. R. Juv. Delinq. P. 13.09 with the exception of the date of the offenses.  Although it is not clear that this document is intended to comply with the rule, we conclude that it constitutes substantial compliance, and that, together with the juvenile court's findings on the record, appellant has failed to show any prejudice resulting from the juvenile court's failure to strictly comply with the rule.

IV.       Denial of motion for new trial

            Appellant argues that he was entitled to a new trial under Minn. R. Juv. Delinq. P. 16.01 and Minn. Stat. § 260B.411 (2004), and that the juvenile court abused its discretion by considering the state's motion to reconsider the order granting a new trial and by rescinding the new-trial order.  The district court's determination of whether to grant a new trial lies within its discretion.  State v. Thompson, 273 Minn. 1, 33, 139 N.W.2d 490, 513 (1966), cert. denied, 385 U.S. 817 (1966). 

            "The court, on written motion of the child's counsel, may grant a new trial" on production of "material evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial."  Minn. R. Juv. Delinq. P. 16.01, subd. 1(E); see also Minn. Stat. § 260B.411 (providing child adjudicated may, at any time within 15 days of the filing of the court's order, petition for rehearing on the grounds that new evidence has been discovered affecting the advisability of the court's original adjudication  or disposition).

A new trial may be granted when . . . it has been discovered that false testimony was given at trial if (1) the court is reasonably well-satisfied that the testimony given by a material witness was false; (2) that without the testimony, the [factfinder] might have reached a different conclusion; and (3) that the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.

Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005) (setting forth the elements of a test developed for review of allegation of false trial testimony developed in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), overruled by United States v. Mitrione, 357 F.3d 712, 718 (7th Cir. 2004) (modifying rule in Larrison), judgment vacated and remanded on other grounds,125 S. Ct. 984 (2005)).  "The third prong is not an absolute condition precedent to granting a new trial but is a factor the court should consider."  Id.  A district court must grant a new trial "where a witness at the original trial subsequently admits on oath . . . that he was mistaken in his testimony, provided such testimony related to a material issue, and was not cumulative."  State v. Caldwell, 322 N.W.2d 574, 587 (Minn. 1982) (emphasis omitted) (quotation omitted).

            The district court initially granted a new trial under the Rainer test[7] for reviewing a claim of newly discovered evidence, rather than the Larrison test for reviewing a claim of false trial testimony.  The evidence that appellant relied on in his motion for a new trial was Garcia's testimony in appellant's father's trial that contradicted Garcia's testimony in appellant's trial about whether appellant was wearing a shirt when he first opened the door.  At appellant's trial, Garcia and his partner testified that appellant was not wearing a shirt when he opened the door.[8]  At appellant's father's trial, Garcia testified that appellant was wearing a white T-shirt. 

            In its order granting a new trial, the juvenile court rejected the state's argument that the new evidence merely impeached the testimony of Garcia and stated that it provided "greater plausibility to [appellant's] testimony that the BB gun was in his waistband, not his hand as claimed by the police officers, when he opened the backdoor, and probably would have resulted in a more favorable result at trial."  The state moved for reconsideration, arguing that the juvenile court should have evaluated appellant's motion under the Larrison test and reiterating its argument that the conflicting testimony was merely impeachment evidence.

            The district court granted the state's motion and vacated the new-trial order, concluding that it had incorrectly applied the Rainer test and had erred in finding that Garcia's subsequent conflicting testimony was more than mere impeachment evidence.  The juvenile court, citing Caldwell, 322 N.W.2d at 585-86, stated that the sole question was "whether [appellant's] right to a fair trial has been prejudiced by reason of [Garcia's] false testimony."  The juvenile court further defined the "real issue" as whether Garcia's false or mistaken testimony about what appellant was wearing related to a material issue and concluded that "whether or not [appellant] was wearing a shirt when he came to the door was not material to the issue of whether or not [appellant] assaulted and terrorized the police officers with his BB handgun."

            On appeal, appellant argues that neither the Rainer nor the Larrison tests applies to juvenile cases, and we find some merit in appellant's argument that these adult, postconviction-relief cases are not appropriately applied to juvenile cases.  But we need not reach that issue because the district court's conclusion that the false or mistaken testimony was not material to the issue of whether appellant committed the assault is sufficient to preclude the grant of a new trial under Minn. Stat. § 260B.411.

            We conclude that the district court has inherent authority to grant a request for reconsideration.  See State v. Papadakis, 643 N.W.2d 349, 356-57 (Minn. App. 2002) (stating that "[a]lthough the rules of criminal procedure do not specifically authorize motions for reconsideration of omnibus rulings, the district court has the inherent authority to consider such a motion," and that such a motion "may be the most efficient and preferable course of action").[9]  We further conclude that the district court did not err in rescinding its new-trial order and did not err in denying appellant's supplemental motion for a new trial on the charge of terroristic threats based on the same evidence.

            Affirmed.

[1] With regard to the assault on T.R., appellant was charged with committing or aiding and abetting the assault.

[2] The petition also charged appellant with one count of carrying a BB gun in public, not involved in this appeal.

[3] Garcia testified he was standing to the side of the door frame because he was trained to consider the area in front of the door a "death tunnel."

[4] Appellant argues that although the district court initially found the officers' testimony credible, it granted a new trial after learning that Garcia's testimony at appellant's father's trial differed from his testimony at appellant's trial.  But that information came to the district court subsequent to the adjudication, and the district court later vacated the order for a new trial.  We conclude that Garcia's later contradictory testimony is irrelevant to the credibility determination made by the district court at appellant's trial.

[5] There was evidence in the record that appellant thought a friend was at the door and that he intended to scare the friend when he opened the door.

[6] Because this was not a jury trial, probative value in this case was not outweighed by prejudicial effect.  See Irwin v. State, 400 N.W.2d 783, 786 (Minn. App. 1987), review denied (Minn. Mar 25, 1987) (agreeing with the district court's determination that probative value outweighed prejudicial effect "particularly where the trial was to the court rather than a jury").  And appellant's participation in each instance was proven beyond a reasonable doubt.

[7] Under the Rainer test, a defendant must prove that: (1) the evidence was not known to the defendant or counsel at the time of trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence would probably produce an acquittal or a more favorable result.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

[8] Appellant testified that he was wearing a "Fubu" T-shirt, and appellant's mother testified that appellant was wearing a blue shirt when appellant opened the door.  The shirt introduced into evidence was a navy and red T-shirt.

[9] Appellant correctly notes that in Papadakis the state had a right to appeal the omnibus matter at issue, but we conclude that the right to appeal is not a limitation on the trial court's inherent authority to reconsider a matter at the invitation of a party.