In the Matter of the Welfare of: R.R.T., Child.

In the Matter of the Welfare of: R.R.T., Child. A04-2167, Court of Appeals Unpublished, September 13, 2005.

This opinion will be unpublished and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

A04-2167

 

In the Matter of the Welfare of:

R.R.T., Child

 

Filed September 13, 2005

Affirmed

Randall, Judge

 

Swift County District Court

File No. J5-04-50064

 

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

 

Robin Finke, Swift County Attorney, Nancy K Altain, Assistant County Attorney, 114 14th Street North, Benson, MN  56215 (for respondent State of Minnesota)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant R.R.T.)

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from adjudications of delinquency for committing drive-by shooting, criminal damage to property, and violating Minnesota's dangerous weapons statute, appellant R.R.T. argues that the evidence was insufficient to support the delinquency adjudications.  We affirm.

FACTS

            Richard Kashmark owns farm property in Swift County, where he goes each day to do farm chores.  Kashmark and other people work inside the various buildings located on the farm property, and there are many animals, including cats, on the farm.  Recently, Kashmark had discovered three dead cats on this property that had apparently been shot.

            On the morning of March 22, 2004, while driving out to his farm, Kashmark observed appellant R.R.T. driving a pickup truck in the direction of Kashmark's farm.  According to Kashmark, appellant drove to the front of the farm's driveway, exited the pickup, went around to the passenger side, opened the door, and retrieved a .22-caliber rifle.  Kashmark watched as appellant walked to the left side of the pickup, aimed the rifle, and shot into Kashmark's yard toward a barn on the property.  Although Kashmark saw appellant point the rifle toward the building site and angle it toward the barn, he did not hear a shot fire.  Appellant then returned to his vehicle and sped away, apparently having realized Kashmark's presence.  Upon examining the scene, Kashmark discovered a .22-caliber casing lying in the driveway where appellant had shot the rifle.  Kashmark also discovered a fresh-looking bullet hole in one of the farm buildings.   

            Appellant was charged with violating (a) Minnesota's dangerous weapons statute, Minn. Stat. § 609.66, subd. 1(a)(1), (b)(2) (2004); (b) Minnesota's criminal damage to property statute, Minn. Stat. § 609.595, subd. 3 (2004); (c) Minnesota's uncased firearm statute, Minn. Stat. § 97B.045, subd. 1 (2004); and (d) Minnesota's drive-by shooting statute, Minn. Stat. § 609.66, subd. 1e(a) (2004).  Following a bench trial, the district court found appellant guilty of all the charged offenses except the uncased firearm charge.  Appellant was adjudicated delinquent.  This appeal followed.    

D E C I S I O N

            In considering a claim of insufficient evidence, this court's review "is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," is sufficient to allow the fact-finder to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant argues that his delinquency adjudications should be reversed because (a) the evidence was insufficient to show that he recklessly fired the gun, (b) the state failed to prove that appellant fired at or toward the barn, (c) the barn was not a "building" as
defined by the statute, and (d) there was no evidence that appellant caused the hole in the barn.

A.         Reckless discharge of a firearm

            Appellant was found guilty of recklessly handling a firearm on a residential premises in violation of Minn. Stat. § 609.66, subd. 1(a)(1), (b)(2) (2004), and drive-by shooting in violation of Minn. Stat. § 609.66, subd. 1e(a) (2004).  Section 609.66, subd. 1e(a), provides in relevant part that:  "Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony . . . ."  Minn. Stat. § 609.66, subd. 1e(a).  Similarly, section 609.66, subd. 1(a)(1), requires a finding of recklessly handling a firearm.  Minn. Stat. § 609.66, subd. 1(a)(1). 

A person acts "recklessly" when he consciously disregards a substantial and unjustifiable risk that the element of an offense exists or will result from his conduct; the risk must be of such a nature and degree that its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

 

State v. Frost, 342 N.W.2d 317, 319 (Minn. 1983). 

            Appellant argues that his delinquency adjudications for drive-by shooting and recklessly handling a firearm should be reversed because there was insufficient evidence
to show that his conduct was reckless.[1]  In support of his claim, appellant cites In re Welfare of A.A.E., 590 N.W.2d 773, 775 (Minn. 1999), in which the child was charged with reckless discharge of a firearm.  Appellant asserts that under the standard set forth in A.A.E., there must be some showing that someone was nearby and that the defendant had reason to know that someone was or could be nearby.

            Appellant misconstrues the standard set forth in A.A.E.  In A.A.E., the court held that under the reckless-discharge-of-a-firearm statute,

[t]he plain meaning of "under circumstances" directs the court's inquiry into whether, under the totality of the circumstances extant at the moment the trigger was pulledincluding what the defendant knew and . . . what the defendant did not knowwould the discharge of the firearm place another person's safety in danger.

 

590 N.W.2d at 777.  This court recently reiterated this standard, stating that the A.A.E. court "clearly stated it was not requiring an analysis of whether the defendant knew his acts were endangering others, it focused on the circumstances the child was aware of, or should have been aware of, when he discharged his weapon."  State v. Kycia, 665 N.W.2d 539, 543 (Minn. App. 2003).

            Here, the evidence supports a factual conclusion that appellant discharged a firearm.  Kashmark testified that he witnessed appellant point a .22 in the direction of the farm, and a .22-caliber casing was found at the spot where appellant was standing when he was holding the gun.  The evidence shows that people routinely work inside the barn and around the site, and that there are farm animals at the site.  The evidence shows that the barn was well kept, indicating that there could be people present at the site maintaining the farm.  The record reflects that appellant did not know if there was anyone in the barn, nor did he check to make sure there was nobody in the barn before firing.[2]  Because appellant knew or should have known that there was a high likelihood that people were in the vicinity of the barn, the evidence was sufficient to support a finding that appellant's actions were reckless. 

            B.         Direction of the discharge

            Appellant also contends that there was insufficient evidence to show that he fired the weapon toward the barn, as required by the statute.  See Minn. Stat. § 609.66, subd. 1e(a) (stating that whoever recklessly discharges a firearm "at or toward" a motor vehicle or building is guilty of drive-by shooting).  We disagree.  There does not have to be "DNA" or "ballistics experts" for the fact-finder to make a judgment about a bullet hole.  That evidence helps, but is not mandated.  The evidence shows that Kashmark witnessed appellant point a firearm in the direction of the barn.  DNR Officer Neil Henriksen testified that the appearance of the bullet hole in the barn was consistent with an entrance mark made by a projectile fired from where appellant stood.  Officer Henriksen testified that the .22-caliber casing found at the scene was fresh and that the damage to the barn was consistent with the impact of a .22-caliber projectile.  The district court found the state's witnesses to be credible.  SeeState v. Miles, 585 N.W.2d 368, 372 (Minn. 1998) (stating thatthis court defers to the fact-finder's determinations regarding the weight and credibility of individual witnesses).  There was sufficient evidence to show that appellant fired in the direction of the barn. 

C.        Barn as a building

            To be convicted of drive-by shooting, one must "recklessly discharge[] a firearm at or toward another motor vehicle or a building . . . ."  Minn. Stat. § 609.66, subd. 1e(a).  A building is defined as a "structure suitable for affording shelter for human beings . . . ."     Minn. Stat. § 609.581, subd. 2 (2004). 

            Appellant contends that he should not have been adjudicated delinquent of drive-by shooting because there was insufficient evidence presented at trial to show that the barn on Kashmark's property was a "building" as defined by statute.  We disagree.  In State v. Walker, 319 N.W.2d 414, 416 (Minn. 1982), the defendant was convicted of burglary and theft based on removing three calves from two different farms.  On appeal, the defendant argued that his burglary conviction was based on entering a structure which is not a "building" as defined by statute.  Id. at 417.  The Minnesota Supreme Court stated that the test for determining whether a structure is a building is "whether the structure is ‘suitable for affording shelter for human beings.'"  Id.  The court noted that:

The building entered in this case was an 18 x 65 foot structure about 15 years old attached to a barn which was even older.  The structure was not in "real good repair" but it had a roof and its walls were "fairly sound."  The owner did not keep the structure well maintained and therefore housed his milking cows in the barn but not his calves.  It had no heat or electricity but did have water through a hose from the barn.  It provided adequate winter shelter for animals.  On cross-examination the owner admitted the building in its present condition was not suitable for sheltering humans.  On redirect he stated that the building would shelter people from the elements.

 

Id.  The court held that although the structure was arguably similar to the tool-shed determined not to be a "building" in State ex. rel. Webber v. Tahash, 277 Minn. 203, 152 N.W.2d 497 (1967), there was sufficient evidence to uphold the jury's finding that this structure was a building as defined by statute.  See id.  (noting that a key difference from the tool shed was that the structure was attached to the dairy barn, in which the owner of the stolen cattle in fact found shelter as he performed daily farm chores).   

            Here, Kashmark testified that the barn houses his horses and cats, and that he does chores in the barn such as working with the horses.  The evidence shows that the barn is
well kept and has galvanized siding.  There is sufficient evidence to show that Kashmark's barn is a building under the statute.   

            D.        Criminal damage to property

            Finally, appellant argues that there was insufficient evidence to support a finding of guilt for criminal damage to property because the state did not prove that appellant caused the hole in the barn.  Giving due deference to the fact-finder, we find there was enough evidence to demonstrate that appellant caused property damage.  A fresh .22-caliber casing in front of the barn and a bullet hole in the barn were found shortly after appellant left Kashmark's property.  In addition to the physical evidence, Kashmark testified that he saw appellant point a rifle at the barn.  The district court found Kashmark's testimony to be credible, and this finding is given deference because the weight and credibility of witness testimony is the province of the fact-finder.  Miles, 585 N.W.2d at 372. 

            The evidence, when viewed in the light most favorable to the verdict, is sufficient to have permitted the district court to find appellant guilty.

            Affirmed.

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

[1] Appellant seems to argue that in order to find him guilty of recklessly handling a firearm in violation of section 609.66, subd. 1(a)(1), the state had to prove that he recklessly discharged the firearm.  But the elements of Minn. Stat. § 609.66, subd. 1(a)(1), only require a finding of reckless handling of the firearm, not actual discharge. 

[2] Appellant claims in his brief that he knew Kashmark and that he knew nobody was in the barn because Kashmark's truck was not parked in the driveway.  However, appellant did not testify at trial, and there is no evidence in the record supporting appellant's assertion that he believed that nobody was present at the farm.