This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
In the Matter of the Welfare of: T.D.S., Child.
Dissenting, Poritsky, Judge*
Hennepin County District Court
File No. J2-01-157001/J0-01-058292
Leonardo Castro, 4th District Public Defender, David P. Murrin, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103;
Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Poritsky, Judge.
U N P U B L I S H E D O P I N I O N
R. A. RANDALL, Judge
Appellant challenges his delinquency adjudication for attempted simple robbery. Appellant argues that the evidence is insufficient to support the district court's findings that T.D.S. played a knowing role in the robbery. We reverse.
Based on the following facts, appellant T.D.S. was charged with attempted simple robbery. Appellant pleaded not guilty, and the case was set for an adjudication hearing.
At the adjudication hearing, G.H., an eight-year-old boy, testified that he rode his bicycle to Logan Park on May 7, 2001. When he entered the park, he was approached by M.H., a twelve-year-old boy, who said to G.H., "Give me the bike. It's my cousin's." After G.H. responded, M.H. said, "You don't want to get hurt, give me the bike." M.H. pushed G.H. to the ground and then called to appellant, who was standing approximately 50 feet away, "T, come here." Appellant did not go over to M.H. but later told M.H. to let G.H. go. M.H. then walked over to appellant. G.H. picked himself up and began riding toward his home, which is approximately one block from the park. As G.H. was riding home, he looked behind him and saw appellant and M.H. following him on their bicycles.
M.H. testified that he and appellant rode their bikes to the park to play basketball. M.H. saw G.H. and planned to steal G.H.'s bike. M.H. testified that when he told appellant that he liked G.H.'s bike, appellant's response was, "Man." M.H. stated that as he and appellant chased G.H. from the park on their bicycles, appellant said, "[Y]ou better get that bike."
After arriving home, G.H.'s mother contacted the police and reported the incident. Minneapolis Park Police Officer Marylynn Boone testified that G.H. described, in great detail, appellant's and M.H.'s appearance, their clothing, and their bicycles. While Officer Boone was interviewing G.H., another officer stopped appellant and M.H. in the park. Officer Boone brought G.H. to the park where he identified M.H. as the individual who pushed him and demanded that G.H. give him the bike. While in the park, Officer Boone noticed appellant a short distance away and also noted appellant was wearing the doorag that G.H. described M.H. was wearing during the attempted robbery. Officer Boone called appellant over, and G.H. identified appellant as the other boy that attempted to take his bike.
At trial, appellant denied knowing that M.H. intended to steal the bike and denied chasing G.H. Appellant admitted waiting nearby while M.H. was with G.H. and testified that he and M.H. changed doorags after the incident. Appellant testified that he learned of M.H.'s plan to steal the bike after the incident. Appellant further testified that he and M.H. did not chase G.H. out of the park but were going in the same general direction.
The district court concluded that the state proved beyond a reasonable doubt that T.D.S. was guilty of attempted simple robbery and adjudicated him delinquent. T.D.S. appeals.
The allegations in a juvenile delinquency petition must be proven beyond a reasonable doubt. Minn. R. Juv. P. 13.06. In an appeal challenging the sufficiency of the evidence, this court reviews the evidence and any inferences drawn in a light most favorable to the findings and determines whether the fact-finder could reasonably conclude that the charge was proven beyond a reasonable doubt. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995); see also In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. 1987) (applying same standard to juvenile cases). A reviewing court assumes the trier of fact "believed the state's witnesses and disbelieved any contrary evidence." State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988) (citations omitted). The weight of evidence and witness credibility are issues for the trier of fact. Id.
The district court found T.D.S. guilty of attempted simple robbery and adjudicated him delinquent. Under Minn. Stat. § 609.05, subd. 1 (2000), "[a] person is criminally liable for a crime committed by another if the person intentionally aids" the other individual to commit the crime; see also State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995) (stating that person can be convicted of aiding in crime if he knowingly played a role in the commission of a crime and took no steps to thwart its completion). Intent can be inferred by the "presence, companionship, and conduct before and after the offense." State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (citation omitted). First of all, mere presence at the scene does not establish aiding and abetting unless it aids in the commission of the crime. State v. Russell, 503 N.W.2d 110, 114 (Minn. 1993) (stating that defendant actively participated in the crime and was not an innocent bystander).
The district court found that there were two attempted simple robberies. According to the district court, the first attempt occurred when M.H. demanded the bike and pushed G.H. down while appellant "waited off in the distance, apparently acting as the reserve in [the] robbery." The district court found the second attempt occurred when M.H. and T.D.S. chased G.H. in an attempt to get the bike.
T.D.S. argues he did not know that M.H. planned to steal the bike, did not participate in the attempted robbery, and did not chase G.H. out of the park. The facts support a finding that M.H. attempted a simple robbery of G.H.'s bike. The issue is not whether there is sufficient evidence to convict M.H., but whether there is sufficient evidence to support the conclusion that T.D.S. is also guilty of attempted simple robbery. Here, the facts do not support a finding that T.D.S. is guilty of either the first or the second attempted simple robbery.
In regard to the first attempt, there is undisputed evidence that T.D.S. told M.H. to leave G.H. alone, thus thwarting the robbery. Additionally, there is no basis for the district court's speculation that T.D.S. was "acting as the reserve." T.D.S. was standing 50 feet away and did nothing to further M.H.'s conduct. The facts show the reverse. They show T.D.S. acted in opposition to M.H.'s actions. T.D.S. told M.H. to leave G.H. alone and refused to come over to G.H. when M.H. called him. When T.D.S. refused to go where M.H. and G.H. were, M.H. then went over toward T.D.S., which allowed G.H. to escape M.H. There is simply no basis to conclude by proof beyond a reasonable doubt that T.D.S. was an aider or abettor on M.H.'s first attempted robbery of G.H.'s bike.
The evidence supporting the district court's finding that there was a second attempt is weak. It consists of T.D.S. and M.H. riding in the same direction out of the park as G.H., and G.H.'s opinion that he was being chased. G.H. was never caught up to by the two boys on the bikes following him, he never headed in any direction that he did not want to go, and was able to get home safely. The only evidence at all that T.D.S. may have been thinking about helping M.H. steal a bike is M.H.'s testimony at the hearing claiming that T.D.S. said, "[Y]ou better get that bike." There is nothing in the record expanding on that statement, if it was made. There is nothing to indicate that it was said in earnest or that it was said in jest, and M.H. claims no other statements on T.D.S.'s part other than that five-word short phrase, "[Y]ou better get that bike." G.H. testified that he did not hear what M.H. claimed T.D.S. said about getting the bike. That leaves M.H., an accomplice, as the only witness that testified that appellant made the statement. Under Minnesota law:
A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (2000).
G.H.'s opinion that M.H. and T.D.S. were "chasing him" to take his bike is not such other evidence as tends to convict T.D.S. of the commission of attempted simple robbery. According to the record, the incident between M.H. and G.H. occurred near the entrance of the park. It is possible that T.D.S. and M.H. were simply going in the same direction as G.H. when they left the park to visit T.D.S.'s cousin's home, as T.D.S. testified. According to the evidence, T.D.S. and M.H. did not chase G.H. up the block, did not make any attempt to cut him off, and never caught G.H. It is inference upon inference and pure speculation what would have occurred if G.H. had not ridden into his own yard.
We conclude that the record does not support the district court's finding that the state proved the charge of attempted simple robbery beyond a reasonable doubt. Appellant is entitled to a reversal on both counts.
PORITSKY, Judge (dissenting)
I respectfully dissent. I agree with the majority’s statement that in a juvenile delinquency proceeding, the elements of the offense must be proven beyond a reasonable doubt. In re Winship, 397U.S. 358, 368, 96 S. Ct. 1068, 1075 (1970). I also agree with the majority’s statements concerning standard of review: The appellate court reviews the record in a light most favorable to the findings. The weight of the evidence and the credibility of witnesses are issues for the trier of fact. “We cannot retry the facts and must assume the trial court believed the prosecution’s witnesses and disbelieved any contrary evidence.” In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (citation omitted). Likewise, I concur with the majority’s conclusion that there is insufficient evidence to support a finding that appellant T.D.S. was involved in the first incident, in which M.H. pushed the victim down and attempted to take the victim’s bicycle. But because I believe that the evidence supports the district court’s finding with respect to T.D.S.’s role in M.H.’s second attempted robbery, I would affirm the district court’s adjudication of delinquency.
At the time of the offense, the victim was eight and one-half years old, T.D.S. was fourteen, and the principal offender, M.H., was twelve. T.D.S. weighed 195 pounds and was over six feet tall. The victim testified that after M.H. pushed him down, the victim got on his bicycle and rode home. He testified that both of the older boys were riding fast and were chasing him. Although the majority dismisses this testimony as “the victim’s opinion,” and speculates that the older boys were simply going in the same direction as the victim, M.H. also testified that he and T.D.S. were chasing the victim, and the district court found that they were, in fact, chasing the victim. M.H. testified that as he and T.D.S. were chasing the victim, T.D.S. said to M.H., “[Y]ou better get that bike.” Although the district court found that T.D.S. made the statement, the majority apparently is not sure “if [the statement] was made.” The district court also found that when T.D.S. said, “[G]et that bike,” he meant what he said. The majority, however, speculates that the statement may have been made in jest, although there is nothing in the record to support such an inference. T.D.S. testified that after the incident, he and M.H. changed headgear. While such an act may have been innocent, it supports the inference that T.D.S. and M.H. acted together to make it more difficult for the victim to identify them. A person’s conduct after the fact may be used to infer the person’s participation in the offense. In re Welfare of D.K.K., 410 N.W.2d 76, 77 (Minn. App. 1987). At the close of the hearing the district court specifically found that the testimony of both the victim and the co-offender M. H. was credible and that the testimony of T.D.S. was not credible.
Because the appellate court is to defer to the district court’s factual findings and its rulings on the matter of credibility, I conclude that there is sufficient evidence to sustain the adjudication of delinquency with respect to the second attempted robbery of the victim’s bicycle.
The majority refers to Minn. Stat. §634.04 (2000), which states, “A conviction cannot be had upon the [uncorroborated] testimony of an accomplice.” The majority points out that M.H. was the only witness who testified that T.D.S. told M.H. to “get that bike,” and concludes that the victim’s testimony to the effect that both boys were chasing him is insufficient to corroborate M.H.’s testimony.
The proper analysis, however, is the reverse of what the majority has done. That is, the victim testified that M.H. tried to take the victim’s bike by force and threats, that the victim fled, and that both M.H. and T.D.S. were riding fast and chasing him. In my view, this evidence, if believed, is sufficient to prove that T.D.S. aided and abetted an attempted robbery. As noted, the district court found the victim’s testimony to be believable. The proper analysis, therefore, is to determine whether M.H.’s testimony that T.D.S. said “get that bike” corroborates the victim’s testimony, and not the other way around. For this reason, it is my conclusion that the operation of Minn. Stat. § 634.04 does not require a reversal.
I respectfully dissent and would sustain the adjudication with respect to the second attempted robbery.