This opinion will be unpublished and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

A03-236

 

In the Matter of the Welfare of: J.E.R.

 

Filed February 10, 2004

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. J202065562/FAM228921

 

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

 

Amy J. Klobuchar, Hennepin County Attorney, Linda M. Freyer, Michael K. Walz, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN  55487 (for respondent State of Minnesota)

 

Leonardo Castro, Fourth District Chief Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant J.E.R.)

 

            Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, 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, appellant argues that the evidence is insufficient to support the adjudication of aiding and abetting attempted simple robbery and that the district court erred by (1) admitting statements that he made without first receiving a Miranda warning; and (2) admitting statements that he made after receiving a Miranda warning because the warning that was given was defective, his request for counsel was ignored, and his waiver was not voluntary, knowing, and intelligent.  We affirm.

FACTS

            At approximately 10:00 p.m. on September 20, 2002, appellant J.E.R. and two of his friends, O.F.E. and M.J.S., saw two young men, M.H. and J.B., walking ahead of them in an alley in south Minneapolis.

            Appellant and his friends began yelling “5-0, cops, run, run,” and started running in the alley toward M.H. and J.B., who also began running.  Appellant and his friends caught up with M.H. and J.B. and demanded bus fare and marijuana.  When M.H. and J.B. said that they did not have any money or marijuana, appellant and his friends momentarily left. 

            M.H. and J.B. went to Anna Loweth’s house.  When Loweth answered the door, she saw five young men, but only recognized M.H. and J.B.  M.H. asked if he and J.B. could use the bathroom, and O.F.E. said that he needed to use the bathroom too.  Loweth did not let anyone enter her home, but she stepped outside and spoke with J.B. and M.H.  Suddenly, a scream came from the alley, and appellant and his friends ran off.

            The three returned separately.  O.F.E. arrived first and approached the side door of Loweth’s house, swinging a broom.  Loweth took the broom from him and pushed him down the steps.  As M.H. and J.B. attempted to follow Loweth into her house, O.F.E. put his hands into his jersey and asked his friends, “Well, should I do it?” He pulled his hands out, flashed a shiny, metallic object about 3-5 inches long and 1-1½ inches wide, and then put his hands and the object back into his jersey.  M.H., J.B., and Loweth each thought that O.F.E. had pulled out a knife, but each acknowledged that the lighting was poor.  The object was later identified as a hair pick.

            After telling the young men to leave, Loweth and M.H. went into Loweth’s house. J.B. began to follow them, but he was grabbed from behind by his backpack.  He held onto the doorjamb, and Loweth and M.H. turned and tried to help him get inside.  Loweth and J.B. testified that they saw the young man in the jersey grabbing J.B. by his backpack, but they could not clearly see if anyone else was pulling on the backpack.  Appellant and his friends left when Loweth said she was calling the police.

            Officers Medeck and Johnson were dispatched to the scene and were given a description of three suspects.  About two blocks south of Loweth’s house, the uniformed officers saw three young men who matched the description sitting on a retaining wall, and the officers approached them.

            Medeck told the young men that the officers had been dispatched about an attempted robbery with a weapon and that they intended to detain the young men until the victims could identify or eliminate them as suspects.  The officers then performed a routine pat search of the young men and found O.F.E.’s hair pick.  As Medeck was telling them why they were being detained, O.F.E. told the officers that they had asked some people for bus fare and he had his hair pick out and they must have thought it was a knife.  Appellant told the officers that they had asked for bus fare, that M.H. and J.B. had no money, and that he had grabbed J.B. by his sweatshirt, but that he was just kidding.  According to the officers, they did not ask any questions of the three young men, and their statements were spontaneous.

            The officers handcuffed the three men, placed them in the squad car, and brought them to Loweth’s house where she and J.B. identified them.  The next morning, detective Ritschel spoke with appellant for 30 minutes.  Appellant received a Miranda warning, but he had not spoken with his mother.  Ritschel did not ask appellant whether he was taking any medication, and he did not know that appellant was being medicated for ADHD.  During the interrogation, appellant admitted that he and O.F.E. grabbed J.B.’s backpack in an effort to get bus fare.  Appellant also admitted throwing a rock through Loweth’s garage window as he left her house.

            Defense counsel moved to suppress the statements appellant made when he was detained on the night of the incident and the statements he made while being interrogated by Ritschel.  In February 2003, the juvenile court issued a brief order denying the motion to suppress and stating that a written order would follow.  The written order explaining the court’s decision was filed on July 10, 2003, which was after this appeal was filed.[1] In the meantime, appellant was adjudicated delinquent of aiding and abetting attempted simple robbery, and he filed this appeal.

D E C I S I O N

Admission of statement appellant made on the night of the incident

Appellant argues that because he was not informed of his Miranda rights before making the statement he made to the officers after he was detained on the night of the incident, the district court erred by denying his motion to suppress the statement.  See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966) (establishing Miranda warning to protect Fifth Amendment privilege against self-incrimination).

When reviewing pretrial orders regarding suppression motions, this court may review the record independently to determine whether the district court erred in not suppressing evidence as a matter of law.  If the district court erred, appellant is entitled to a new trial unless the error was harmless beyond a reasonable doubt.

 

In re Welfare of M.A.K., 667 N.W.2d 467, 471 (Minn. App. 2003) (citation omitted).

“Statements made by a suspect during custodial interrogation are generally inadmissible unless the suspect is first given a Miranda warning.”  State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998).  “The first prong of inquiry in determining whether police conduct constitutes custodial interrogation so as to trigger the Miranda requirements is to determine whether a suspect was in custody.”  Id.  If police did not make an arrest, then reviewing courts must look at all of the surrounding circumstances to determine whether the restraints on the suspect’s freedom were comparable to those associated with a formal arrest.  State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995).  It is an objective inquiry:  courts consider whether a reasonable person in the suspect’s situation would have understood that he was in custody to the degree associated with formal arrest.  Id.  But “Miranda generally does not apply to temporary investigative detentions.”  State v. Perkins, 353 N.W.2d 557, 560 (Minn. 1984) (citing In re Welfare of M.A., 310 N.W.2d 699, 700 (Minn. 1981)).

“The second prong of the Miranda inquiry is to determine whether the police conduct in question was ‘interrogation’ for purposes of excluding the suspect’s statement.”  Edrozo, 578 N.W.2d at 724.  “Miranda safeguards apply whenever a person in custody is subjected to either express questioning or its functional equivalent.”  Id.  (quotation omitted).  “‘[F]unctional equivalent’ . . . means any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.”  Id. (quotation omitted).  “Such police conduct, to trigger Miranda, must reflect a measure of compulsion above and beyond that inherent in custody itself.”  Id. (quotation omitted).

The district court found that appellant was in custody based, in part, on Medeck’s testimony that appellant was not free to leave.  But the court also found that because the officers did not make any statements intended to elicit incriminating statements from appellant, appellant’s statements were voluntary and, therefore, admissible.

The record supports the district court’s findings and conclusions.  Appellant and his friends were approached by two uniformed officers and told that they matched the description of suspects involved in a robbery a few blocks away.  Appellant was told that he could not leave until the officers could get one of the victims to either identify or eliminate him as a suspect.  Appellant and his friends were then pat searched, the hair pick was found on O.F.E., and appellant made his statement.[2]  When he made the statement, appellant understood that he was not free to leave and that he would not be free to leave unless the victims eliminated him as a suspect.  Under these circumstances, it was reasonable for appellant to believe that he was in custody.  See Perkins, 353 N.W.2d at 560 (stating that arguably, once defendant was frisked and a gun seized, he “might reasonably have believed that he was going to be arrested and that he was not merely being temporarily detained”) (citing Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319 (1983)).

It is undisputed that appellant was not read his Miranda rights on the night of the incident before making his statement.  But “[a] volunteered statement made by a suspect, not in response to interrogation, is not barred by the Fifth Amendment and is admissible with or without the giving of Miranda warnings.”  State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995).

The district court found:

The police officers made no statements intended to elicit incriminating statements from [appellant].  They simply informed [appellant] . . . that [he was] being detained because [he] fit the description of [a] potential robbery suspect[] and that [he was] being brought to the victim [for] possible identification.  To consider such action to be “interrogatory” in form, would force the police to work in silence, taking people into custody without even informing them of what is going on.

 

Appellant argues that Medeck’s statement to him, when coupled with the manner in which the officers approached appellant and his friends, the pat searches, the handcuffing, and detention, were the type of statements that Medeck should have known were reasonably likely to elicit an incriminating response.

But appellant made his statement before he was handcuffed and detained overnight.  Furthermore, as the officer’s testimony and the fact sequence indicate, the pat search was reasonably conducted for the officer’s safety, as it was believed a knife was involved.  The pat search was not used to create an atmosphere of authority to elicit information.  Also, both officers testified that they did not ask any questions before appellant made the statement, and there is no evidence of any coercion by the officers.  Therefore, we conclude that appellant volunteered his statement on the night of the incident, and the district court did not err by denying appellant’s motion to suppress that statement.

Admission of statements appellant made during interrogation

Appellant argues that the district court erred by admitting the statements he made when Ritschel interrogated him because (1) the Miranda warning he received was inadequate; (2) his request for counsel was ignored; and (3) he did not voluntarily, knowingly, and intelligently waive his Miranda rights.

“[T]he determination whether a juvenile’s waiver of his or her rights is knowing, intelligent and voluntary is a fact question dependent upon the totality of the circumstances.”  State v. Jones, 566 N.W.2d 317, 324 (Minn. 1997).  An appellate court will not reverse a district court’s findings of fact surrounding the giving of a statement unless those findings are clearly erroneous, but an appellate court “will make an independent determination, on the basis of the facts as found, of whether the state has shown by a fair preponderance of the evidence that the waiver was knowing, intelligent and voluntary.”  Id.  An appellate court “review[s] the voluntariness of a confession de novo as a question of law based on “all factual findings that are not clearly erroneous.”  State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (quotation omitted).

If police fully advise a suspect of his Miranda rights, and the suspect indicates that he understands his rights and nonetheless “gives an incriminating statement, the state is deemed to have met its burden of proving that the [suspect] knowingly and intelligently waived his rights.”  Williams, 535 N.W.2d at 286 (emphasis added).  However, “[i]n determining whether a juvenile has voluntarily waived his right to remain silent, . . . a court must further evaluate the totality of the circumstances.”  Jones, 566 N.W.2d at 322.  The factors to be considered include the child’s age, maturity, intelligence, education, prior criminal experience, the length and legality of the detention and nature of the interrogation, the lack of or adequacy of warnings, and the presence or absence of parents.  In re Welfare of D.B.X., 638 N.W.2d 449, 453 (Minn. App. 2002).

Also,

the court must determine whether the juvenile has voluntarily offered the inculpatory statement.  Williams, 535 N.W.2d at 287 (stating that waiver of right to remain silent and the voluntariness of the actual confession are two separate issues).  The rule that a confession must be voluntary is designed to deter improper police interrogation.  In other words, a suspect can knowingly, intelligently and voluntarily waive his or her right to remain silent, but still can be coerced into making an inculpatory statement.

 

Jones, 455 N.W.2d at 323 (quotation omitted).  In each instance, the relevant factors to be considered are the same.  Williams, 535 N.W.2d at 287.

In its July 2003 memorandum, the district court found that Ritshcel “provided a clear and concise Miranda warning to [appellant] before conducting [his] interrogation” and that appellant “gave a voluntary waiver of his Miranda rights after they were provided and explained by [the officer].”  The court considered the factors enumerated above and concluded that (1) appellant was “of suitable intelligence and maturity to understand and waive [his] Miranda [rights];” (2) appellant “never requested to have parents present, and was never refused access to them;” (3) the length of detention was reasonable and legal; and (4) the Miranda warning was in accordance with the appropriate procedure.

Appellant argues that the Miranda warning that Ritschel gave was defective because Ritschel told appellant that anything he said would be used “for or against” him in court, but the warning prescribed by the Supreme Court in Miranda v. Arizona states that a suspect

must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

 

384 U.S. at 479, 86 S. Ct. at 1630.

Ritschel warned appellant as follows:

[Ritschel]:      At this time I’m going to advise you of your constitutional rights.  You have a right to remain silent.  Can you tell me what that means?

 

[Appellant]:    [11 second delay] I don’t have to say anything.

 

[Ritschel]:      Exactly.  You don’t have to talk to me if you don’t want to.  All right?  Anything you say can and will be used as evidence for or against you in court.  Do you understand this?  Tell me what that means to you.

 

[Appellant]:    Whatever I say will be used in court.

 

 (Emphasis added.)

Appellant argues that using the word “for” provided a subtle inducement to speak because it implied that the police might use the information he provided to help him.  Appellant notes that using the “for or against” warning has been disapproved in several jurisdictions.  But under Minnesota case law, “[t]here is no requirement that Miranda warnings ‘take a rigid form so long as they are correct in substance.’”  D.B.X., 638 N.W.2d at 454 (quoting State v. Ouk, 516 N.W.2d 180, 185 (Minn. 1994) (citing California v. Prysock, 453 U.S. 355, 359-61, 101 S. Ct. 2806, 2809-10 (1981))).  Here, the transcript demonstrates that the warning Ritschel gave was correct in substance.

Appellant also argues that he requested counsel, and Ritschel ignored his request. 

During the interrogation, the following exchange occurred:

[Ritschel]:      Okay.  You have a right to talk with a lawyer, have a lawyer present now or at any time during questioning.  Do you understand this?  Tell me what that means.

 

[Appellant]:    Am I getting’ a lawyer?

 

[Ritschel]:      And you can have one here now during questioning if you like.  Do you understand that now?

 

[Appellant]:    Yeah.

 

[Ritschel]:      If you cannot afford a lawyer, one will be appointed for you without cost.  Do you understand this?  Tell me what that means to you.

 

[Appellant]:    You guys will get me a lawyer if I don’t have the money.

 

[Ritschel]:      Okay.  So do you understand each of these rights as I have explained them to you?

 

[Appellant]:    Um, hmm.

 

[Ritschel]:      Yes or no, please.

 

[Appellant]:    Yes.

 

[Ritschel]:      Having these rights in mind do you wish to talk to me at this time.

 

[Appellant[:    Yeah, I’ll talk.

 

 (Emphasis added.)

            Appellant argues that Ritschel violated his right to counsel when he did not answer appellant’s question about whether he was getting a lawyer.  Citing State v. Robinson, appellant argues that when he asked if he was getting a lawyer, Ritschel should have interrupted the interrogation in order to clarify appellant’s wishes concerning counsel before proceeding.  427 N.W.2d 217, 222-23 (Minn. 1988).

Robinson holds that “when a suspect indicates by an equivocal or ambiguous statement, which is subject to a construction that the [suspect] is requesting counsel, all further questioning must stop except that narrow questions designed to ‘clarify’ the [suspect’s] true desires respecting counsel may continue.”  Id.  But “[i]f a statement, viewed in the context in which it is made, does not even arguably suggest that the accused is asserting that he or she does not wish to continue the custodial interrogation without the aid of counsel, then continuation of the interrogation is proper.”  State v. Risk, 598 N.W.2d 642, 649 (Minn. 1999).

            The state argues that, when viewed in the context of the exchange between Ritschel and appellant, appellant’s question whether he was getting an attorney was not a request for counsel.  We agree.  When viewed in the context in which it was made, appellant’s inquiry does not suggest that he wanted to discontinue the interrogation or that he would continue only with the aid of counsel.  See State v. Hale, 453 N.W.2d 704, 708 (Minn. 1990) (stating in dictum that other jurisdictions following the Robinson “stop and clarify” approach have held that not every mention of the words “lawyer,” “counsel,” or “attorney” by a suspect suggest that the suspect is invoking his right to have an attorney present prior to submitting to further interrogation).  We, therefore, conclude that appellant’s right to counsel was not violated.

            Citing State v. Scott, 584 N.W.2d 412, 415 (Minn. 1998), Ouk, 516 N.W.2d at 183 n.5, and In re Welfare of L.R.B., 373 N.W.2d 334, 335-36 (Minn. App. 1985), appellant argues that the Miranda warning he received “lacks the detailed Miranda and waiver advisory which has been spoken of favorably by Minnesota appellate cases involving juveniles.”  But appellant has not provided any analysis explaining how the Miranda warning he received is inconsistent with these cases.  Assignments of error based on mere assertion and unsupported by adequate briefing are deemed waived unless prejudicial error is obvious on mere inspection.  State v. Quick, 659 N.W.2d 701, 718 (Minn. 2003);  State v. Ture, 632 N.W.2d 621, 632 (Minn. 2001).

            In Scott, “[t]he police . . . issued the Miranda warning in the extensive manner routinely provided to juveniles” by reading the warning in segments and then asking Scott if “he understood his rights after each segment of the Miranda warning was read to him.” Scott, 584 N.W.2d at 415.  This was also the procedure followed by the police in OukOuk, 516 N.W.2d at 183 n.5.  The supreme court found in both Scott and Ouk that the suspect knowingly and intelligently waived his rights after being read the Miranda warning; Scott, 584 N.W.2d at 419; Ouk, 516 N.W.2d at 185-86.  In L.R.B., this court held that the trial court did not err in admitting L.R.B.’s confession, which was given after an informal recitation of Miranda rights.  373 N.W.2d at 338.  The officer in L.R.B. read the defendant his rights twice, once in a formal manner and a second time explaining them in an informal way.  Id. at 335.  This court held that Minn. R. Juv. P. 6.01 did not require a verbatim reading of a Miranda card, only that a child be advised to the same extent as an adult would be prior to custodial interrogation.  Id. at 336.

            The transcript demonstrates that Ritschel followed the same procedure as the officers in Scott and Ouk.  Thus, it is not obvious on mere inspection how those opinions and L.R.B. support appellant’s argument that the Miranda warning he received was not adequate.  Therefore, appellant has waived this assignment of error.

            Appellant also argues that his interrogation included the same deficiencies that were present in D.B.X., where this court held that D.B.X. did not knowingly, intelligently, and voluntarily waive his Miranda rights.  638 N.W.2d at 455.  Like appellant, D.B.X. had no juvenile record and little or no prior contact with police.  Id. at 453.  But the Miranda warning and the nature of the interrogation in D.B.X. differed significantly from this case.  Unlike appellant, D.B.X. did not understand certain English words, and his grammar and syntax were consistent with that of a person who speaks English as a second language.  Id. at 453-54.  Furthermore, an officer interrogated D.B.X. for a significant length of time (10-15 minutes) before advising D.B.X. of his Miranda rights.  Id. at 451, 454.  During the pre-Miranda period, the officer

(1) ordered D.B.X. to remove his clothing; (2) told D.B.X. that he would have to “make a recommendation” to the prosecutor about the case; (3) admonished D.B.X. to tell the truth; (4) challenged D.B.X.’s propensity for truthfulness; (5) told D.B.X. that if he did not “come clean” on small matters, [the officer] would not be able to “help”; and (6) encouraged D.B.X to join, among two kinds of people, the people who “make a mistake” and confess rather than the people who are non-remorseful criminals.

 

Id. at 454.  This court determined that the officer’s technique undermined the voluntariness of D.B.X.’s Miranda waiver.  Id.  This court also determined that the Miranda warning was confusing rather than enlightening because “interspersed in the Miranda warning, [the officer] made three references to D.B.X.’s teeth, at one point saying, ‘Let me see your teeth.’”  Id.  This court also determined that when the officer asked D.B.X. whether he was comfortable talking to the officer, the question “had no link to the [Miranda] warning and the answer therefore did not validly solicit a waiver of  [D.B.X.’s] Miranda rights.”  Id. at 454-55. 

            In contrast to D.B.X., the record supports the district court’s finding that appellant is of suitable intelligence and maturity to understand and waive his Miranda rights.  Appellant is in an age-appropriate grade in school, although he takes medication for ADHD.  Appellant was provided an adequate Miranda advisory, and there were no intervening questions between the advisory and appellant’s waiver.  Also, the transcript of the interrogation and the omnibus-hearing testimony support the district court’s finding that Ritschel did not use coercive techniques.

Like D.B.X., appellant’s parent was not present.  But the absence of a parent by itself does not render a waiver or confession invalid.  See State v. Hogan, 297 Minn. 430, 440, 212 N.W.2d 664, 671 (1973) (rejecting per se exclusionary rule whenever rights are waived and statement is given in absence of parent and stating parental presence is only one factor, not an absolute prerequisite to voluntariness).  The district court found that appellant was not denied access to his parent and that appellant never requested access. Although the district court essentially put the onus on appellant to request that his parent be present, we conclude that the totality of the circumstances demonstrates that the state has shown by a preponderance of the evidence that appellant’s waiver of his Miranda rights was knowing, intelligent, and voluntary.

Sufficiency of the evidence

Appellant argues that the evidence is insufficient to support his adjudication of aiding and abetting attempted simple robbery.  Appellant’s argument assumes that his statements were inadmissible.  Because we have concluded that the district court did not err in admitting appellant’s statements, we will consider whether the evidence, which includes appellant’s statements, is sufficient to support the adjudication. 

On appeal from a determination that each of the elements of a delinquency petition has been proved beyond a reasonable doubt, “an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”   In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  Appellate courts review the record in the light most favorable to the findings.  Id.  Appellate courts must assume the district court “believed the prosecution’s witnesses and disbelieved any contradictory evidence.”  In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987).

A person who (1) intends to commit a crime; and (2) does an act that is a substantial step toward, and more than preparation for, committing the crime, is guilty of an attempt to commit the crime.  Minn. Stat. § 609.17, subd. 1 (2002).

Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery . . . .

 

Minn. Stat. § 609.24 (2002). 

“A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (2002).

To impose liability under the aiding and abetting statute, the state must show some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.  Mere presence at the scene of a crime does not alone prove that a person aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.  Nevertheless, active participation in the overt act which constitutes the substantive offense is not required, and a person’s presence, companionship, and conduct before and after an offense are relevant circumstances from which a person’s criminal intent may be inferred.

 

State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation and citations omitted). 

If the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the [factfinder] to consider this conduct in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission. . . . Once a reasonable inference arises . . . from all the circumstances that defendant was a participant, defendant’s guilt is sufficiently established.  This inference is a . . . question for [the fact finder].

 

Id. at 925 (quotations omitted).  “[T]he state meets its burden by showing some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  Id.

Appellant argues that he committed no intentional act that was a substantial step toward committing the crime of robbery.  He contends that testimony establishes that it was O.F.E. who did most or all of the talking and who performed the aggressive acts.  But appellant admitted to Ritschel that both he and O.F.E. grabbed J.B.’s backpack in an effort to prevent him from entering Loweth’s house so that he and his friends could get money.  Grabbing the backpack was a substantial step toward committing the crime of robbery. 

Appellant argues that because he told the officers that he was only kidding when he pulled on J.B.’s backpack, he could not have had the intent to commit the crime.  “Intent is an inference drawn by the [fact finder] from the totality of the circumstances.  The defendant’s statements as to his intentions are not binding on the [fact finder] if defendant’s acts demonstrate a contrary intent.”  State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989) (citations omitted).  An inference of intent may be drawn from events both before and after a crime.  State v. Andrews, 388 N.W.2d 723, 728 (Minn. 1986).

Appellant admitted pulling on J.B.’s backpack and throwing a rock through Loweth’s garage window as he and his companions were leaving.  This evidence supports an inference that appellant had the required criminal intent.  See id. (noting that events both before and after, as well as during a crime are relevant to the totality of the circumstances from which an inference of intent may be draw).  Upon careful review of the record in the light most favorable to the district court’s findings, we conclude that the evidence was sufficient to find appellant committed the offense of aiding and abetting simple robbery.

            Affirmed.



[1] Appellant initially questioned the district court’s jurisdiction to enter the July 2003 order after this appeal was filed.  The general rule is that an appeal, when perfected, divests the district court of jurisdiction.  Evans v. Blesi, 345 N.W.2d 775, 780 (Minn. App. 1984), review denied (Minn. June 12, 1984).  However, in the interests of judicial economy, both parties stipulated at oral argument that this court could take judicial notice of the July 2003 order.

[2] Appellant was handcuffed after he made the statement.