In the Matter of the Welfare of:  T.A.K.

In the Matter of the Welfare of:  T.A.K. A05-1662, Court of Appeals Unpublished, December 5, 2006.

This opinion will be unpublished and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

A05-1662

 

In the Matter of the Welfare of: 
T.A.K.

 

Filed December 5, 2006

Reversed and remanded

Peterson, Judge

 

Hennepin County District Court

File No. 27-J4-05-056148/27-J6-02-067072

 

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

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent State of Minnesota)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a delinquency adjudication and disposition, appellant T.A.K. argues that (1) the district court erred by concluding that his conduct satisfied the elements of theft from the person of another; (2) the district court's failure to make written findings within seven days after the conclusion of trial deprived him of due process; and (3) the district court failed to make written findings to support its disposition order.  We reverse and remand.

FACTS

            An officer working plainclothes detail at a shopping mall saw a man set a bag on the floor and turn his back to talk to a salesperson at a kiosk.  The officer then saw appellant walk by, take the bag, place it under his coat, and walk away while the man's back was still turned.  The officer apprehended appellant and returned the bag to the man before the man knew that it had been taken.

            The Hennepin County Attorney charged appellant with felony theft from the person of another, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(3)(d)(i) (2004), and the parties agreed to present the case to the court for decision based on the police reports and counsel's arguments.  The court found that the state met its burden of proving beyond a reasonable doubt that appellant committed theft from the person of another, adjudicated him delinquent, and ordered that he be placed at the Woodland Hills Residential Treatment Program for up to one year.  The court issued a document titled "Court Order and Title IV-E Findings," which is a preprinted form that lists several pieces of information that could apply to a juvenile case and has boxes that can be checked to indicate which pieces of information apply to a particular case.  This appeal followed.

D E C I S I O N

1.         Appellant argues that the district court erred as a matter of law when it held that his conduct satisfied the elements of theft from the person of another.  Appellant was charged with violating Minn. Stat. § 609.52, subd. 2(1) (2004), which states that whoever "intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of the property" commits theft.  Appellant was sentenced under Minn. Stat. § 609.52, subd. 3(3)(d)(i) (2004), which states that a person who commits theft may be sentenced "to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if . . . the value of the property or services stolen is not more than $500, and . . . the property is taken from the person of another." 

There is no dispute that appellant took the bag, but appellant argues that because the victim's back was turned and the victim was not aware that the bag had been taken, the property was not taken "from the person of another."  In In re Welfare of D.D.S.,a juvenile was adjudicated delinquent based on a determination that he committed theft from the person of another when "he took a radio that was not actually on the person of another but only in the other's presence."  396 N.W.2d 831, 832 (Minn. 1986).  In rejecting the juvenile's argument that the theft was not from the person of another, the supreme court explained that "[t]he general rule is that when the legislature uses a phrase it uses the phrase according to its commonly understood meaning" and that "[a]t common law property was stolen ‘from the person' of another even if it was only ‘in the presence' of the person at the time it was stolen."  Id. The supreme court then concluded that

the legislature's failure to use the phrase "or in his presence" in section 609.52, subd. 3(3)(a),[1] does not mean that the legislature intended to exclude theft of property under the immediate control of the victim from the offense of theft from the person.  There was simply no need to add the phrase "or in his presence" in the theft statute because this court had already ruled that theft "from the person" extended "to every case of stealing, where the property stolen is on the person, or in the immediate charge and custody of the person from whom the theft is made." 

 

Id. at 832-33 (quoting State v. Eno, 8 Minn. 220, 223, 8 Gil. 190, 193 (1863)). 

            We conclude that under D.D.S., the fact that the victim's back was turned and the victim was not aware that his bag had been taken does not mean that appellant did not take property "from the person of another."  The victim placed the bag on the floor, but the bag remained in the victim's immediate charge and custody when appellant took it.

2.         Appellant argues that his due-process rights were violated because the district court did not make written findings.  The rules of juvenile procedure require that

[w]ithin seven (7) days of the conclusion of the trial, the court shall find that the allegations in the charging document have or have not been proved beyond a reasonable doubt.  The order finding that the allegations of the charging document have been proved shall also state the child's name and date of birth; and the date and county where the offense was committed.  The court shall dismiss the charging document if the allegations have not been proved.  Findings may be made on the record, but must be followed up in writing within the seven (7) days.  For good cause, the court may extend the time for filing written findings for an additional seven (7) days.

 

Minn. R. Juv. Delinq. P. 13.09.  This court has concluded that particularized findings are required in determining "disposition, but not when deciding whether to adjudicate." In re Welfare of J.L.Y., 596 N.W.2d 692, 695 (Minn. App. 1999), review granted (Minn. Sept. 28, 1999), and order granting review vacated (Minn. Feb. 15, 2000); see Minn. Stat. § 260B.198, subd. 1(m) (2004) (written findings of fact required for disposition of juvenile, explaining how best interests of child are served and alternative dispositions considered and why those dispositions were not appropriate); Minn. R. Juv. Delinq. P. 15.05, subd. 2 (elaborating on requirement of particularized findings for disposition). 

            The district court stated on the record that it found "that the State has met its burden of proof that [appellant] committed the offense of theft from person beyond a reasonable doubt."  But the only written order issued[2] within seven days of the conclusion of the trial was the document titled, "Court Order and Title IV-E Findings."  Although particularized findings are not required when deciding whether to adjudicate delinquency, this document does not meet the basic requirement that the district court follow up in writing its finding that the state proved beyond a reasonable doubt that appellant committed the offense of theft from the person; it simply indicates that the district court's order was "Adjudicate Delinquent."  Also, the document does not state when and where appellant's offense was committed.  Therefore, the document does not meet the requirements of rule 13.09.

3.         Appellant argues, and the state concedes, that the Court Order and Title IV-E Findings do not meet the requirements of Minn. Stat. § 260B.198, subd. 1(m), and Minn. R. Juv. Delinq. P. 15.05, subd. 2(A).  District courts are afforded broad discretion in determining appropriate juvenile-delinquency dispositions.  In re Welfare of J.A.J., 545 N.W.2d 412, 414 (Minn. App. 1996).  "A disposition calling for out-of-home placement must be supported by evidence that the placement is the least drastic step necessary to restore law-abiding conduct."  In re Welfare of N.T.K., 619 N.W.2d 209, 211 (Minn. App. 2000).

            A district court ordering out-of-home placement is required to make findings of fact that show (1) why public safety is served by the disposition; (2) why the best interests of the child are served by the disposition; (3) what alternative dispositions were proposed to the court and why such recommendations were not ordered; (4) why the child's present custody is not acceptable; and (5) how the correctional placement meets the child's needs.  Minn. R. Juv. P. 15.05, subd. 2(A); see Minn. Stat. § 260B.198, subd. 1(m) (requiring findings on best interests and alternative dispositions).

            The district court stated on the record that it is "clear that less restrictive alternatives have been attempted and that [appellant] needs an out-of-home placement because his behavior has continued.  He's continued to commit offenses even though he's been on probation supervision and attends IDT."  Although the record demonstrates that the district court considered placement options and had a reason for the option that it chose, "[w]ritten findings are essential to meaningful appellate review."  N.T.K., 619 N.W.2d at 212. 

            Because the Court Order and Title IV-E Findings do not meet the requirements for written findings in a juvenile-delinquency proceeding, we reverse and remand to permit the district court to make written findings.  On remand, the district court may, at its discretion, reopen the record.  

            Reversed and remanded.

[1] In the 1984 theft statute that the supreme court analyzed in D.D.S., the language that now appears at Minn. Stat. § 609.52, subd. 3(3)(d)(i), appeared at Minn. Stat. § 609.52, subd. 3(3)(a).

[2] The district court issued findings of fact, conclusions of law, and order on September 6, 2005, which was after appellant filed his notice of appeal.  Generally, when there is an appeal pending, a district court's jurisdiction is suspended as to those matters that are necessarily involved in the appeal.  Muecke v. State, 348 N.W.2d 808, 810 (Minn. App. 1984) (quoting State v. Barnes, 249 Minn. 301, 302-03, 81 N.W.2d 864, 866 (1957)).  Therefore, we will not consider the September 6, 2005 order.