This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-45

 

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

 

Filed December 2, 2003

Affirmed in part and reversed in part

Stoneburner, Judge

 

Hennepin County District Court

File No. J102062880, 240878

 

Leonardo Castro, Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, Suite 200, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant J.H.K.)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant juvenile challenges his delinquency adjudication arguing that the district court erred in finding that his act of confronting two juveniles with a BB gun and demanding that they leave his property was not a justified use of force, erred in finding that appellant’s driveway was a “public place” under Minn. Stat. § 624.7181 (2000), and erred in finding that the state proved beyond a reasonable doubt that he committed the crime of terroristic threats.  Because the district court erred by finding that appellant’s driveway is a “public place” under Minn. Stat. § 624.7181, we reverse the district court’s finding that appellant violated Minn. Stat. § 624.7181 and vacate the adjudication under that statute.  Because the record supports the district court’s determination that appellant’s use of force was not justified and the evidence is sufficient to support the district court’s conclusion that appellant committed the charged offenses of terroristic threats, we affirm appellant’s delinquency adjudication on those charges.

FACTS

 

            One day after school, when appellant and his sister were home alone, appellant’s sister told appellant that she overheard rumors at school that made her think that some people might come to the house to “hurt her, trash the house and trash the car,” due to a long-standing dispute she was having with a girl at school.  Appellant, who attended the same school, had heard similar rumors.  The sister told appellant to be on the lookout for a white sports car or a blue Mazda.  

            Appellant was working on a car in the front yard and his sister was in the house when a car, similar to one of the cars appellant’s sister had described, stopped on the street in front of their house.  There were three young men in the car.  The two passengers got out of the car and started to walk up the driveway towards the house.  Appellant immediately went to the house.  He found his sister crying, nearly hysterical, and asking him to protect her.  Appellant took an unloaded BB gun from the front closet and confronted the two 17-year-olds who were coming up the driveway.  He waved the gun in their direction and ordered them off the property.  The young men went rapidly back to the car.  The passengers and the driver, who had just gotten out of the car, quickly got back into the car, and they all left.  Appellant testified that as they were leaving, one of the young men told him that they could now go to the police and say he threatened them.

            The police arrived at appellant’s house several hours later.  Appellant’s father gave them the unloaded BB gun.  In a recorded statement appellant gave about the incident, appellant stated that he was just trying to protect his sister.  He said he and his sister had not thought of calling the police. 

            Appellant was charged with two counts of terroristic threats, under Minn. Stat. § 609.713, subd. 3 (2000), and one count of carrying a BB gun in public, under Minn. Stat. § 624.7181 (2000).  At the conclusion of the state’s case at trial, appellant moved to dismiss the charge of carrying a BB gun in public.  The court took the motion under advisement and requested post-trial briefs.  The state conceded in its post-trial submission that it had not satisfied the “public place” requirement of Minn. Stat. § 624.7181.  The district court nonetheless found that appellant had violated Minn. Stat. § 624.7181, finding that appellant’s driveway was a public place for purposes of the statute.  The district court rejected appellant’s assertion of “defense of another” based on appellant’s failure to retreat.  The district court rejected the assertion of “defense of property,” concluding that the amount of force appellant used was not reasonable.  Appellant was placed on probation with conditions.  This appeal followed.

D E C I S I O N

 

1.         Possession of BB gun in a public place

            Whether a statute has been properly construed is a question of law subject to de novo review.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

            Minn. Stat. § 624.7181, subd. 2 (2000), provides that “[w]hoever carries a BB gun  . . . on or about the person in a public place is guilty of a gross misdemeanor.”  As the state conceded at trial and on appeal, Minn. Stat. § 624.7181, subd. 1 (c) (2000), specifically excludes a person’s dwelling house or premises from the definition of public place.  The district court nonetheless found that appellant violated the statute by carrying the BB gun on his driveway.  The district court apparently relied on case law construing an urban driveway as a public place or area under Minn. Stat. § 624.714, subd. 1(a) (2000), which prohibits possession of a pistol in a “public place or public area.”   But Minn. Stat. § 624.714, unlike Minn. Stat. § 624.7181, does not contain a definition of “public place or public area.”  Minn. Stat. § 624.7181, subd. 1 (c), is unambiguous.  See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (when a statute is unambiguous, a court must apply its plain meaning).  The district court erred in concluding that appellant possessed a BB gun in a public place under Minn. Stat. § 624.7181.  We therefore reverse that determination and vacate appellant’s adjudication for violation of Minn. Stat. § 624.7181.

2.         Justified use of force

            Appellant raised defenses under Minn. Stat. § 609.06, subd. 1(3) and (4) (2000), which provide:

[R]easonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist:

                        . . . .

 

(3)       when used by any person in resisting or aiding another to resist an offense against the person; or

 

(4)       when used by any person in lawful possession of real or personal property, or by another assisting the person in lawful possession in resisting a trespass upon or other unlawful interference with such property.

 

To assert a justification defense, the accused has the initial burden of producing some evidence that he is entitled to the particular defense, and if he meets this burden, the state must prove beyond a reasonable doubt that the use of force was not justified.  State v. Housley, 322 N.W.2d 746, 750 (Minn. 1982); State v. Harvey, 277 N.W.2d 344, 345 (Minn. 1979).

            We review de novo whether the district court properly applied the law.  State v. Basting, 572 N.W.2d 281, 282 (Minn. 1997).  Findings from a bench trial are entitled to the same weight as a jury verdict.  State v. Thompson, 544 N.W.2d 8, 11 (Minn. 1996).  Those findings are not disturbed unless they are “manifestly against the evidence.”   State v. Soukup, 656 N.W.2d 424, 428 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003) (quoting State v. Miller, 253 Minn. 112, 116, 91 N.W.2d 138, 141 (1958)).

            a.         Defense of another

            The district court concluded that appellant was not entitled to assert defense of another “because he did not attempt to retreat.”  Defense of another parallels self-defense. State v. Granroth, 294 Minn. 491, 492, n. 2, 200 N.W.2d 397, 399, n.2 (1972) (stating “justification for homicide in defense of another parallels defense of self”).  The elements of self-defense are: (1) an absence of aggression or provocation by the defendant; (2) the defendant’s actual and honest belief that he was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for this belief; and (4) the absence of a reasonable possibility to retreat to avoid the danger.  Basting, 572 N.W.2d at 285-86.

            The issue of whether there is a duty to retreat in defense of another has not been directly addressed in Minnesota, although cases have suggested that such a duty exists.  See State v. Columbus, 258 N.W.2d 122, 125 (Minn. 1977) (rejecting self-defense and defense of another because defendant did not meet requirements of self-defense, including duty to retreat and failed to show that he or person he was purporting to protect was in any imminent danger); State v. Andrasko, 454 N.W.2d 648, 650-1 (Minn. App. 1990) (holding district court did not err in refusing to instruct jury on self-defense or defense of another, noting that before doctrine of self-defense can be invoked, defendant has duty to retreat or avoid danger if reasonably possible), review denied (Minn. June 25, 1990).  But Professor LaFave cautions that the retreat alternative must be addressed somewhat differently in analyzing defense of another, arguing that the ability of a defendant to retreat without risk to himself should not control when the force is being used to protect another party who cannot retreat.  1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.8, at 667 (1986).

            On appeal, appellant more specifically argues that even if there is a duty to retreat before one can invoke defense of another, there is no duty to retreat from one’s own property.  Minnesota has never directly addressed whether one has a duty to retreat within the curtilage of his home.  But we agree with the state that this specific issue was not raised in the district court, and we generally will not consider matters not argued and considered in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).     We also need not address the duty to retreat when defending another because, on this record the justification of defense of another was not available to appellant as a matter of law.  As the state argued in district court and on appeal, appellant’s sister was not in any imminent danger when appellant brandished the BB gun.  Appellant’s sister was safe in the house behind doors that locked.  No one was assaulting her and no one had made any threat to assault her.  See State v. Pacholl, 361 N.W.2d 463, 465 (Minn. App. 1985) (defendant was not entitled to a defense-of-another instruction when there was no evidence showing anyone in imminent danger of harm).  Under these circumstances, the district court did not err in concluding that appellant was not entitled to invoke defense of another.  See Columbus, 258 N.W.2d at 125 (holding reversal not required for erroneous instruction where as a matter of law justification was not available to defendant).

            b.         Defense of property

            The district court concluded that defense of property was “unavailable to [appellant] because his actions in light of the gravity of the situation were not reasonable.”  We agree.  Minn. Stat. § 609.06, subd. 1(4) (2000), only permits reasonable force to defend real or personal property against “a trespass” or “other unlawful interference.”  Appellant argues that a trespass occurred here when the two young men started up appellant’s driveway, noting that Minn. Stat. § 609.06, subd. 1(4), does not limit use of force only to cases of criminal trespass.  But appellant has not shown any need to “defend” against the minor trespass that occurred here.  There was no trespass to the car or house or any threat to or other unlawful interference with any of appellant’s property.  In this case, appellant immediately resorted to threatening the juveniles with a BB gun, a response out of proportion to two young people, one with his leg in a cast, having started to walk up the driveway. 

3.         Sufficiency of the evidence

            Appellant argues that the evidence was insufficient to support a finding that he committed the crime of making terroristic threats as charged.  In juvenile delinquency proceedings, the state must prove the petition beyond a reasonable doubt.   In re Welfare of J.R.M., 653 N.W.2d 207, 210 (Minn. App. 2002).  “When reviewing a sufficiency of the evidence claim, this court carefully reviews whether the record and any legitimate inferences drawn from it reasonably support the fact-finder’s conclusion that the defendant committed the offense charged.”  Id.   In addition, if the facts, and the reasonable inferences drawn from those facts, could reasonably lead the fact-finder to conclude that a defendant has committed the offense, this court will not disturb the adjudication of delinquency.  Id. 

            “On appeal, the sufficiency of the evidence is viewed in a light most favorable to the state.”  Id.   And this court assumes that the fact-finder believed the state’s witnesses and did not believe any contradictory evidence.[1]  Id.   Consequently, an appellant must show that the fact-finder “could not reasonably find the appellant committed the charged acts.”  Id.

            Minn. Stat. § 609.713, subd. 3 (2000), provides that a person is guilty of making terroristic threats when he: (1) “displays, exhibits, brandishes, or otherwise employs a . . . BB gun”; (2) in a threatening manner; and (3) in so doing either causes or attempts to cause terror, or acts in reckless disregard of the risk of causing terror.  Appellant admitted that he displayed the BB gun and that he wanted “[t]o try to seem as threatening as possible to get them to leave.”  He testified that he went into the house to find “something to scare them away with . . .”  Appellant has admitted all of the elements of the crime with which he was charged.[2]

            Affirmed in part and reversed in part.



[1] Appellant asserts that the district court’s findings are inadequate because they merely recite trial testimony, but the court is not obligated to conform its findings to any particular content or format and we are required to examine the entire record and assume that the fact finder believed the testimony supporting the decision and disbelieved any contrary evidence.  State v. Dominguez, 663 N.W.2d 563, 566 (Minn. App. 2003).

[2] Appellant argues that an intent requirement should be read into Minn. Stat. § 609.714, subd. 3(1) (2000).  But this issue was not raised in district court and is deemed waived.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  And, in any event, appellant  admitted that he intended to scare the boys.