This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






In the Matter of the Welfare of D.I.S., Child.


Filed March 12, 2002


Hanson, Judge


Stearns County District Court

File No. JX-00-52289


John M. Stuart, State Public Defender, Charlann E. Winking, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


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


Roger S. Van Heel, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303 (for respondent)


            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Poritsky, Judge.*

U N P U B L I S H E D  O P I N I O N


On appeal from an adjudication of delinquency for theft-from-the-person and fifth-degree assault, appellant argues that the evidence that he assaulted the victim and was later found in possession of the victim’s gold chain was insufficient to prove that appellant took the chain “from the person” of the victim, as required by the theft-from-the-person charge.  We affirm.


D.I.S., a minor, angrily approached J.G. in a parking lot.  J.G. was sitting in the driver’s seat of his vehicle with the door open.  D.I.S. hit J.G. several times, and then grabbed J.G. around the neck to pull him out of the vehicle.  A witness encountered J.G. as he was fleeing into a nearby building.  The witness testified that J.G. had a black eye and a red abrasion on his neck, and that J.G. told her he didn’t have his gold chain. 

When D.I.S. was arrested, the officer noticed that he had a gold chain around his neck, and asked D.I.S. about it.  D.I.S. admitted that the chain belonged to J.G. 

D.I.S. was charged with simple robbery, a violation of Minn. Stat. § 609.24 (1998); theft-from-the-person, a violation of Minn. Stat. § 609.52, subd. 2(1) (1998); and fifth-degree assault, a violation of Minn. Stat. § 609.224, subd. 1(2) (1998).  D.I.S. pleaded not guilty to all three charges.  After a trial, the district court found D.I.S. not guilty of robbery, but adjudicated him delinquent for committing theft-from-the-person and fifth-degree assault.  D.I.S. appeals only from the theft-from-the-person adjudication.


Under Minn. Stat. § 609.52, subd. 3(3)(d)(i) a theft that would otherwise be a misdemeanor is made a felony if the property was taken “from the person.”  Property is taken from the person if it is taken from the person of another or in his immediate presence.  In re Welfare of D.D.S., 396 N.W.2d 831, 832-33 (Minn. 1986).

D.I.S. does not dispute the sufficiency of the evidence to prove theft, but only the sufficiency of the evidence to prove that the theft was from the person.  D.I.S.’s argument is based on the premise that there is only circumstantial evidence indicating that he took the chain from J.G.’s person.  When a conviction is based only on circumstantial evidence, it warrants stricter scrutiny.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992); State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  Under the stricter standard, the reviewing court must determine that the circumstantial evidence, when taken as a whole, is “consistent with the hypothesis that the defendant is guilty and inconsistent with any other rational hypothesis other than guilt.”  State v. Thomas, 590 N.W.2d 755, 758 (Minn. 1999); see also Moore, 481 N.W.2d at 360. 

D.I.S. offers, as a hypothesis inconsistent with his guilt, that the evidence would support the conclusion that he accidentally ripped the chain off J.G. during the altercation, the chain fell to the ground and D.I.S. did not pick it up until after J.G. fled the scene.

We do not agree that this hypothesis is inconsistent with guilt.  To the contrary, we conclude that a theft is still made “from the person” where the perpetrator’s actual or threatened violence causes the victim to flee the scene, thus preventing the victim from protecting the property left at the scene.  Although there are no decisions dealing specifically with this interpretation of “theft-from-the-person” under Minn. Stat. 609.52, subd. 3(3)(d)(i), we receive guidance from our decisions involving charges that contain an analogous “presence” requirement.

            For example, this court examined the similar requirement, “from the person or in the presence of another,” contained in an aggravated robbery charge under Minn. Stat. § 609.245 (1986).  State v. Bonn, 412 N.W.2d 28 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987).  In Bonn, the defendants severely beat the victim, left the victim in the living room and then took property from the victim’s bedroom.  Id. at 28-29.  We concluded that the property was sufficiently in the victim’s presence for the purpose of the statute, where the victim was prevented from defending the property because of the defendants’ assault.  Decisions from other state courts support our conclusion.  See, e.g., People v. Smith, 73 Cal. Reptr. 859 (Cal. Ct. App. 1968) (holding that evidence that the defendant picked up the victim’s wallet from the street, where it had fallen during an assault, was sufficient to prove “theft from the person,” even though the victim had fled); State v. Marsan, 221 N.W.2d 278 (Iowa 1974) (holding that evidence the defendant had taken a wallet from the ground at victim’s feet was sufficient to prove “theft-from-the-person”).

Because D.I.S.’s threat of further violence removed J.G. from the scene and prevented him from defending his property, the taking of J.G.’s chain was “from the person” of J.G., for the purpose of the statute. 

            Moreover, the evidence was also sufficient to support an adjudication based on a finding that D.I.S. intended to steal the chain at the time he ripped it from J.G.’s neck, which clearly would satisfy any definition of “from the person.”  See State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (stating that a fact finder may “infer that a person intends the natural and probable consequences of his actions”). 



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