In re the Matter of the Welfare of: K.H.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-95-2521

In re the Matter of the Welfare of:
K.H.

  Filed September 17, 1996
Affirmed
Willis, Judge

Ramsey County District Court
File No. J5-95-554778

John M. Stuart, State Public Defender, Dwayne Bryan, Special Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Government Center West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N

WILLIS , Judge
Appellant K.H. appeals from an order adjudicating him delinquent and directing disposition.
FACTS

In September 1995, appellant K.H., a seventeen-year-old male, cashed forged payroll checks at two Target stores in the Twin Cities. Appellant was charged with two counts of theft by swindle under Minn. Stat. §subd. 2(4) (1994). Appellant admits he knew the checks were forged and he knew he was not entitled to the money.
Both in his pretrial statements and at trial, appellant claimed that he did not want to cash the forged checks, but that he was forced to do so by fellow gang members. Appellant claims that when he initially refused to participate in the forged check scheme and asked to get out of the gang, gang members beat him severely and told him he could only get out of the gang by participating in the scheme.
On September 17, 1995, two gang members drove appellant to the Target Midway store in St. Paul and the Lake Street Target store in Minneapolis to cash two payroll checks made payable to appellant. Appellant entered the stores alone; he did not tell the cashiers that the checks were forged or that he was cashing them under duress. 1 He did not ask anyone for help. Instead, appellant left the stores with a total of $1,176.50 in cash. He claims he did so because he feared for his safety.
Implicitly finding the state had proven a lack of duress, the juvenile court sustained the delinquency petition on two felony counts of theft by swindle and ordered that appellant be committed to the Minnesota Correctional Facility at Sauk Centre. This appeal followed.
D E C I S I O N

On appeal from a delinquency adjudication, we determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to support the finding of delinquency. In re Welfare of G.L.M. , 347 N.W.2d 84, 85 (Minn. App. 1984).
When a defendant pleads duress, the burden of disproving the defense beyond a reasonable doubt shifts to the state. State v. Brodie , 529 N.W.2d 395, 398 (Minn. App. 1995), rev'd on other grounds , 532 N.W.2d 557 (Minn. 1995). The Fourteenth Amendment requires such an allocation of the burdens because the defense is "`inextricably bound' to the intent requirement, which the state is required to prove." Id. (quoting State v. Niska , 514 N.W.2d 260, 264 (Minn. 1994)). Therefore, the state must prove that the defendant did not participate in the crime
only under compulsion by another engaged therein, who by threats create[d] a reasonable apprehension in the mind of [defendant] that in case of refusal [defendant would be] liable to instant death .

Minn. Stat. §(1994) (emphasis added). A threat of future danger to a defendant's life is no defense. State v. Rosillo , 282 N.W.2d 872, 873 & n.1 (Minn. 1979).
Case law interpreting the duress statute has focused on the immediacy of mortal danger . In Rosillo , the defendant, a police informant, assisted the police in apprehending suspected narcotics dealers. Id. at 872. Rosillo gave a sworn statement and testified at the omnibus hearing. Id. at 873. Later, he was harassed, run down, and threatened by armed assailants. Id. at 872. When Rosillo took the stand at trial, he denied knowledge of the drug transactions. Id. at 873. Rosillo was charged with perjury. Although he admitted he lied in his testimony, he claimed he acted under duress.
The trial court found Rosillo had not acted under duress, reasoning that if a defendant has
some chance to escape, to seek someone's help, to reflect as to what he should do or shouldn't do, then he can't claim this defense.

Id. The supreme court affirmed, stating that to broaden the defense to situations where the threat of death is not immediate "would undermine the obvious legislative intent." Id.
Here, the record indicates that appellant was, at the most, under threat of future danger. His gang-member escorts did not follow him into the stores. They did not hold a gun to his head. Moreover, appellant did not seek the cashiers' help or tell them he was acting under duress. We therefore conclude that the evidence was sufficient for the district court to find that appellant was not acting under duress and to sustain the district court's finding of delinquency.
  Affirmed.