This opinion will be unpublished and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

A03-870

 

 

In the Matter of the Welfare of:

D.Q.A.

 

 

Filed May 18, 2004

Affirmed in part, reversed in part, and remanded

Willis, Judge

 

Hennepin County District Court

File Nos. J9-02-064313 & FAM-242942

 

 

Leonardo Castro, Fourth District Chief Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant D.Q.A.)

 

Mike Hatch, Attorney General, 1800 NCL 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)

 

            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            On appeal from his adjudication of delinquency for possession of a pistol, appellant argues that (1) because the stop that led to the discovery of the pistol was unconstitutional, the pistol should not have been admitted into evidence; (2) the evidence does not support a finding that he was in possession of the pistol; (3) the juvenile court made factual findings unsupported by the evidence; (4) the juvenile court improperly shifted the burden of proof from the state to appellant; and (5) the juvenile court erred in its disposition.  Because we conclude that (1) D.Q.A. waived his right to challenge the admissibility of the pistol because he did not raise the issue below; (2) the evidence supports a finding that appellant was in possession of the pistol; and (3) the juvenile court did not make factual findings unsupported by the evidence or shift the burden of proof, we affirm in part.  But because we agree that the juvenile court erred in its disposition by failing to make written findings to support its dispositional order as required by Minn. Stat. § 260B.198, subd. 1(m) (2002), and Minn. R. Juv. P. 15.05, subd. 2, we reverse in part and remand.

FACTS

            At 10:20 p.m. on September 2, 2002, Minneapolis police officer Stephen Moore was on routine patrol in Minneapolis with his partner when they noticed appellant D.Q.A. walking northbound on 16th Avenue South.  Officer Moore testified that he noticed D.Q.A. because as the squad car got close to him, D.Q.A. “looked kind of nervous” and was “peeking at [the police] out of the corner of his eyes.”  Officer Moore testified that D.Q.A. then dropped a small, dark-colored object next to the sidewalk and that when the object dropped, it “sounded like metal hitting the ground or a piece of wood” and that it “made a clanking noise.”  D.Q.A. continued walking down the street.  Because Officer Moore wanted to see what D.Q.A. dropped, the officers turned the spotlight on him and stopped the squad car.  Officer Moore then asked D.Q.A. if he could talk to him, and D.Q.A. walked over to the squad car. 

            While his partner talked with D.Q.A., Officer Moore walked to the place where he saw D.Q.A. drop the object; there, Moore found a pistol and a light-blue lighter lying in the dirt behind a small wood retaining wall abutting the sidewalk.  D.Q.A. was arrested at the scene and was later charged with possession of a pistol by a minor, in violation of Minn. Stat. § 624.713, subd. 1(a) (2002). 

            D.Q.A. testified at trial, as did Officer Moore and Sergeant Holley, who conducted a tape-recorded interview with D.Q.A. following his arrest.  D.Q.A. testified that (1) when he saw the police, he dropped a cigar, a dark-blue lighter, and a juice box on the sidewalk and (2) he had not possessed or dropped a pistol.  Sergeant Holley testified that D.Q.A. told him that “as he was being stopped, he dropped his juice” and that D.Q.A. did not mention anything about smoking a cigar, dropping the cigar, or dropping a lighter.

            On May 6, 2003, the district court adjudicated D.Q.A. delinquent for possessing a pistol.  On June 9, 2003, the district court placed D.Q.A. on probation and ordered him to attend and complete a gun program.  The district court also stayed a placement at the six-week Beta program at the Hennepin County Home School.  D.Q.A. appealed, challenging both the adjudication of delinquency and the delinquency disposition.

D E C I S I O N

I.

Although D.Q.A. did not move to suppress the pistol before trial or object to its admission during trial, he now claims that the pistol was unlawfully seized.  A reviewing court generally will consider only matters argued and considered by the trial court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  As a general rule, a reviewing court will not consider issues, even constitutional issues, that are raised for the first time on appeal.  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  But the waiver rule is not absolute and a reviewing court “may address an issue in the interests of justice if addressing the issue will not work an unfair surprise on a party.”  Johnson v. State, 673 N.W.2d 144, 147 (Minn. 2004).

D.Q.A. argues that appellate review of the seizure of the pistol is appropriate here because it involves his constitutional right to be free from unreasonable searches and seizures, and he urges this court to exercise its discretion and review the constitutionality of the stop.  See Minn. R. Civ. App. P. 103.04 (providing that appellate courts may review any matter as the interest of justice may require).  He further asserts that the record is adequate for this court to address the constitutionality of the stop, noting that Officer Moore was asked at trial about (1) D.Q.A.’s demeanor when he saw the police, (2) what the item that Officer Moore saw D.Q.A. drop looked like and how it sounded when it hit the ground, and (3) why Officer Moore called D.Q.A. over to the squad car.

The state argues that by failing to challenge the admissibility of the pistol before trial, D.Q.A. waived his right to raise the issue on appeal and that application of the waiver doctrine is appropriate because the lack of an omnibus hearing deprived the state of its opportunity to present evidence tailored to meet the constitutional challenge.  See State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996) (stating that the defendant’s discussion of issues not raised below was “particularly inappropriate because they involve undeveloped questions of fact”).  The state notes that D.Q.A. now argues that Officer Moore had no basis to stop D.Q.A. because nowhere during the trial did Officer Moore specifically “testify that he thought the object dropped was a weapon or why he might have thought that” and maintains that had D.Q.A. previously challenged the admission of the pistol, the prosecutor likely would have asked Officer Moore to more fully explain his testimony.  Because D.Q.A. did not challenge the pistol’s admission below, we conclude that addressing the issue of the constitutionality of the stop of D.Q.A. would work an “unfair surprise” on the state because the record here was not adequately developed and that, thus, the application of the waiver doctrine is appropriate; we nevertheless determine that the pistol was properly admitted under search and seizure law.

This court reviews de novo the legality of a limited investigatory stop and questions of reasonable suspicion and “must determine whether a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.”  See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution prohibit unreasonable searches and seizures.  Not all encounters between the police and a citizen constitute a seizure.  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  Instead, seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).  The key is whether police officers convey a message that compliance with their requests is required.  Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2388 (1991).  Factors indicating a seizure include

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.  In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

 

E.D.J., 502 N.W.2d at 781 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980)).

D.Q.A. asserts that he was seized by the officers because they stopped their squad car in front of him, called him over to the vehicle, and the driver of the squad car pushed him up against the vehicle, searched him, squeezed his penis, and then handcuffed him.  D.Q.A. maintains that his testimony regarding what occurred is unrebutted because the state failed to call the driver as a witness, and, although Officer Moore testified that he did not believe his partner did what D.Q.A. described, Officer Moore had no actual knowledge of what his partner was doing to D.Q.A. because he was searching for the object that D.Q.A. had dropped.

The state asserts that D.Q.A. was not seized because the police merely stopped and asked D.Q.A. if they could talk to him, noting that the supreme court has emphasized that “the mere act of approaching a person who is standing on a public street or sitting in a car that is parked and asking questions is not a ‘seizure.’”  E.D.J., 502 N.W.2d at 782.  But the record shows that the officers did more than merely ask D.Q.A. if they could ask him questions; the officers turned their spotlight on D.Q.A., and, rather than approaching him, the officers asked him to come over to the squad car.  Thus, we conclude that a seizure occurred. 

But even if an individual is seized, generally the seizure is illegal only if it was unreasonable.  A brief seizure of a person for investigatory purposes is not unreasonable if an officer has a “particular and objective basis for suspecting the particular person [seized] of criminal activity.”  State v. Johnson, 444 N.W.2d 824, 825 (Minn. 1989) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  The officer may justify his decision to seize a person based on the totality of the circumstances and “may draw inferences and deductions that might elude an untrained person.”  Cripps, 533 N.W.2d at 391.  But a mere hunch, absent other objectively reasonable, articulable facts, will not justify a seizure.  Harris, 590 N.W.2d at 99. 

“A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.”  United States v. Arvizu, 534 U.S. 266, 277, 122 S. Ct. 744, 753 (2002).  The Minnesota courts “are deferential to police officer training and experience and recognize that a trained officer can properly act on suspicion that would elude an untrained eye.”  State v. Britton, 604 N.W.2d 84, 88-89 (Minn. 2000).  Innocent behavior will frequently provide the basis for a reasonable suspicion.  United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 1587 (1989).  The U.S. Supreme Court has explained that “in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation” and that Terry thus permits officers to detain individuals to resolve such an ambiguity.  Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 677 (2000).

D.Q.A. argues that there was no basis for the investigatory stop, maintaining that the police stopped him only because they thought that D.Q.A. was looking at the squad car “nervously” as it drove towards him and that he dropped a small, dark-colored object.  D.Q.A. asserts that (1) his “nervousness” was not a justifiable basis for stopping him and (2) the dropped object did not provide a basis for the investigatory stop because Officer Moore did not testify that he thought that the object dropped was a weapon.  But based on the limited information in the record, which includes Officer Moore’s testimony that he saw D.Q.A. drop a small, dark-colored object that “sounded like metal hitting the ground,” we conclude that Officer Moore articulated a reasonable suspicion of criminal activity and that, thus, the pistol was properly admitted.

II.

            Minnesota Statutes section 624.713, subdivisions 1(a), 2(a) (2002), provide that it is a felony for a person under the age of 18 to possess a pistol.  D.Q.A. argues that the juvenile court erred by finding that the state presented sufficient evidence to prove beyond a reasonable doubt that he possessed the pistol found by the police.  In all criminal proceedings, including juvenile proceedings, the prosecution must prove beyond a reasonable doubt each and every element of the offense charged.  Minn. R. Juv. P. 13.06; In re Welfare of B.M.L., 553 N.W.2d 113, 114 (Minn. App. 1996).  A reviewing court will overturn a finding of delinquency only if the trier of fact could not reasonably have found that the juvenile committed the acts with which he was charged.  In re Welfare of T.M.V., 368 N.W.2d 421, 423 (Minn. App. 1985). 

When reviewing the sufficiency of the evidence, 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.  State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981); see also In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (applying the same standard to juvenile cases).  When the facts and legitimate inferences drawn from the facts could reasonably lead the fact-finder to conclude that an accused has committed the offense, the conviction should not be disturbed.  State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996).  On appeal, the sufficiency of the evidence is viewed in the light most favorable to the state.  In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984).  This court assumes the trier of fact believed the state’s witnesses and disbelieved any contradictory evidence.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). 

Circumstantial evidence is entitled to the same weight as other kinds of evidence but merits stricter scrutiny.  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  Circumstantial evidence must “form a complete chain which, in the light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980).  A fact-finder is in the best position to evaluate circumstantial evidence, and its decision is entitled to deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

D.Q.A.’s delinquency adjudication was based on circumstantial evidence.  Officer Moore testified that (1) he saw in D.Q.A.’s hand a small, dark-colored object, which D.Q.A. dropped as the squad car approached, (2) when the object dropped, it “sounded like metal hitting the ground or a piece of wood,” (3) the police stopped the car to discover what D.Q.A. had dropped, (4) he checked the area where he had seen D.Q.A. drop the object, and (5) he discovered a pistol and a cigarette lighter.  Officer Moore further testified that the weapon that was found was consistent with the object that he saw in D.Q.A.’s hand.  Both in his statement to Sergeant Holley and in his testimony, D.Q.A. denied knowing anything about the pistol.  The parties also stipulated that no useable latent prints were recovered from the pistol or the lighter.

D.Q.A. first asserts that the juvenile court “incorrectly credited the police testimony and discredited [D.Q.A.’s]” in adjudicating him delinquent.  But it is the exclusive role of the fact-finder to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d. 321, 327 (Minn. 1998).

D.Q.A. also argues that the circumstantial evidence produced at trial did not support the juvenile court’s conclusion that D.Q.A. possessed the pistol because there are “alternative rational hypotheses that equally explain the evidence presented to the juvenile court.”  D.Q.A. maintains that given these alternative rational hypotheses, the facts cannot be said to form a complete chain leading so directly to D.Q.A.’s guilt that they exclude beyond a reasonable doubt any other rational hypothesis.  See Webb, 440 N.W.2d at 431 (reversing defendant’s conviction because certain circumstances in the case “may cast a suspicion of guilt on the appellant, but they in no way exclude other rational inferences which can also be drawn from these circumstances”). 

We reject D.Q.A.’s argument.  Officer Moore testified that he saw D.Q.A. drop a small, dark-colored object on the ground and that when the object dropped it “sounded like metal hitting the ground or a piece of wood.  It made a clanking noise.”  Officer Moore further testified that when he went to the area where D.Q.A. dropped the object, he found a .25 caliber pistol in the dirt behind a small, wood retaining wall and that the pistol was “consistent” with what he saw D.Q.A. drop.  Thus, we conclude that the circumstantial evidence supporting D.Q.A.’s adjudication forms “a complete chain that leads directly” to his guilt. 

III.

D.Q.A. next contends that the juvenile court’s findings of fact and conclusions of law are “replete with reversible error.”  The district court’s factual findings are subject to a clearly erroneous standard of review.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  D.Q.A. first notes that the district court found that Officer Moore testified that he saw D.Q.A. “throw down” a small, dark-colored object and maintains that this finding is a misstatement of Officer Moore’s testimony in which he stated that D.Q.A. “dropped” the object.  D.Q.A. contends that this is a significant difference because an object that is “thrown” is more likely to make a noise when it falls than one that is “dropped.”  While the district court’s finding contained a misstatement of Officer Moore’s testimony, this error does not warrant relief.

D.Q.A. also maintains that the juvenile court erred by finding that the “[o]fficers at the scene did not see any cigar.”  D.Q.A. argues that this finding was a misstatement of the evidence, noting that Officer Moore was not asked whether he saw a cigar in the area where D.Q.A. was stopped.  But because Officer Moore testified that the pistol and a light-blue lighter were the only items recovered at the scene, the district court’s finding was a fair inference from Officer Moore’s testimony.

D.Q.A. next argues that the district court’s conclusions of law show that the court improperly shifted the burden of proof to him.  The court’s conclusions of law provide that:

1.  The state presented proof of each and every element of the charged offense.

2.  [D.Q.A.’s] versions of events were inconsistent and not credible in light of all the other evidence in the case.

3.  The state has proved beyond a reasonable doubt that [D.Q.A.] did posses[s] a [pistol] in Hennepin County, Minnesota on September 2, 2002 at which time he was 16 years old.

 

The Due Process Clause requires the state to prove every element of a crime charged beyond a reasonable doubt.  State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995).  The burden to disprove the existence of any element of the crime charged may not be shifted to the defendant.  Id.

Because the district court’s conclusion that the state proved beyond a reasonable doubt that D.Q.A. possessed a pistol followed its conclusion that it found D.Q.A.’s testimony to be not credible, D.Q.A. contends that he was adjudicated delinquent because he did not convince the court of his innocence.  Thus, D.Q.A. maintains, the state’s burden of proving each and every element of the crime beyond a reasonable doubt was not satisfied here and that because the juvenile court shifted the burden of proof to him, its decision must be reversed.

But in its second conclusion of law, the court simply states that, in light of the state’s evidence, it found D.Q.A.’s “version of events” inconsistent and not credible.  Because an accused’s testimony may be considered in determining whether there is sufficient evidence that he committed a crime, we conclude that the district court did not improperly shift the burden of proof to D.Q.A.  See State v. Fenney, 448 N.W.2d 54, 61 (Minn. 1989) (determining that evidence of defendant’s guilt included “inconsistencies in” defendant’s “own testimony”); State v. Pulkrabek, 268 N.W.2d 561, 564 (Minn. 1978) (holding that the evidence presented at trial, “including defendant’s testimony,” was sufficient to convict). 

IV.

            After a disposition hearing, the district court placed D.Q.A. on probation, ordered him to attend and complete a gun program, and stayed a six-week Beta-program placement at the Hennepin County Home School.  District courts are afforded broad discretion in determining appropriate delinquency dispositions, and this court will affirm dispositions that are not “arbitrary.”  In re Welfare of J.A.J.,545 N.W.2d 412, 414 (Minn. App. 1996).  Absent a clear abuse of discretion, a district court’s disposition will not be disturbed.  Id.

But the district court is required to make written findings to support its dispositional order.  See Minn. Stat. § 260B.198, subd. 1(m) (2002); Minn. R. Juv. P. 15.05, subd. 2.  The district court abuses its discretion by ordering a disposition without making findings in support of its order.  See In re Welfare of N.T.K., 619 N.W.2d 209, 211-12 (Minn. App. 2000).  Inadequate juvenile-disposition findings constitute reversible error.  Id. (holding that insufficient findings are an independent basis for reversal); In re Welfare of J.S.S.,610 N.W.2d 364, 368 (Minn. App. 2000) (reversing for failure to make sufficient statutorily required written findings of fact); In re Welfare of C.A.W.,579 N.W.2d 494, 499 (Minn. App. 1998) (reversing where district court’s findings did not address the factors necessary to justify out-of-home placement); In re Welfare of M.A.C.,455 N.W.2d 494, 499 (Minn. App. 1990) (explaining that the failure to make statutorily required written findings warrants reversal).

Here, both the state and D.Q.A. agree that the district court did not make written findings to support the disposition.  The district court’s failure to make these findings to support its juvenile-delinquency disposition requires reversal of the disposition and a remand for the district court to make appropriate findings.

Affirmed in part, reversed in part, and remanded.