This opinion will be unpublished and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
In the Matter of the
Welfare of: R. J. R.
Filed December 21, 2004
Affirmed as modified
Hennepin County District Court
File Nos. J7-03-071108 & 233770
Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Ave. S., Suite 200, Minneapolis, MN 55401 (for appellant R.J.R.)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Schumacher, Judge; and Crippen, Judge.
Fourteen-year-old appellant R.J.R. challenges a trial court order adjudicating him delinquent on one count of reckless discharge of a firearm, Minn. Stat. § 609.66, subd. 1a(a)(3) (2002), and one count of minor in possession of a pistol, Minn. Stat. § 624.713, subds. 1(a), 2 (2002), arguing that the evidence does not permit findings that appellant committed either offense. Because the trial court’s findings are supported by the record and support his adjudications, we affirm.
A party ensued at appellant’s home in the Little Earth Neighborhood of Minneapolis where he lives with his older brother. In attendance at the party were T.R.E., her brother Josh, and several other teenagers. In the early morning hours, some partygoers pulled out a gun and began passing it around the room, pointing it at different people. Josh had seen the pistol at another party and warned appellant that it was “sensitive.”
A male youth, unidentified on the record, was waving the pistol around and pointing it at appellant and T.R.E. Appellant stepped between the male youth and T.R.E. and took possession of the gun. He then sat down next to T.R.E. and proceeded to remove the magazine, which contained the bullets. In checking the chamber for a bullet, appellant either pulled back the sliding mechanism, shook the gun, or both, resulting in the gun discharging and shooting T.R.E. in the arm.
The position of the gun when it discharged is disputed. T.R.E. claimed that appellant was “kind of playing with [the pistol]” and pointing it at her when it discharged.
She also testified that appellant was holding the gun up to her arm. Appellant told the police that he thought the pistol was pointed down as he was trying to unload it. Nevertheless, the pistol was extremely close to T.R.E.’s arm when it fired because the responding officer found powder burns on her shirt.
Following adjudication of appellant’s delinquency, premised on the reckless discharge and possession charges, the juvenile court placed him on probation and ordered him to complete a 16-week gun program. Appellant argues on appeal that the evidence is insufficient to support the reckless discharge adjudication because the state failed to prove that he recklessly discharged the pistol and that his acts occurred within a municipality. Appellant also contends that the court (1) erred in adjudicating him delinquent for underage possession of a firearm on evidence that he had only fleeting and transitory possession of the pistol and (2) erred in adjudicating him delinquent for two offenses that were part of a single behavioral incident.
D E C I S I O N
1. Reckless Discharge of a Firearm
Appellant first argues that the evidence is insufficient to support his adjudication for reckless discharge of a firearm because the state produced no evidence that he consciously took steps that he knew, or should have known, would create an unreasonable risk of harm to others.
In all criminal proceedings, including juvenile delinquency proceedings, the prosecution must prove beyond a reasonable doubt each and every element of the offense charged. Minn. R. Juv. Delinq. 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 delinquency finding 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 a sufficiency-of-the-evidence claim, we must evaluate the record and take any legitimate inferences that can be drawn from the record in the light most favorable to the adjudication. In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997). We are not to disturb the delinquency finding if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude from the evidence that the juvenile committed the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
It is a felony to “recklessly discharge a firearm within a municipality.” Minn. Stat. § 609.66, subd. 1a(a)(3). Applying the governing standard to the circumstances here, appellant recklessly discharged the gun if he consciously disregarded a substantial and unjustifiable risk, of which he was aware or should have been aware, that the gun would discharge and harm another. See State v. Zupetz, 322 N.W.2d 730, 733-34 (Minn. 1982) (quoting 2 Charles E. Torcia, Wharton’s Criminal Law § 168, at 272 (14th ed. 1979)); see also Model Penal Code § 2.02(2)(c) (1985) (adopting identical definition of recklessness). “Reckless” refers to the risk created by conduct as well as the potential consequences that flow from the conduct. State v. Cole,542 N.W.2d 43, 52 (Minn. 1996). This risk must grossly deviate from the standard of conduct that a law-abiding juvenile would have observed under the circumstances. See Zupetz, 322 N.W.2d at 733.
The trial court found and the record supports the findings that appellant recklessly discharged a firearm because he knew or should have known “the gun was trigger-sensitive, that he had not checked the chamber to ascertain if a bullet was there, [and] that he held [the pistol] close enough to T.R.E. to cause powder burns on her arm.” First, the victim’s brother testified that he told appellant that the gun was trigger-sensitive. Appellant later told police that he knew the gun had a tendency to “go off by itself.” Second, T.R.E. testified that appellant removed the magazine and was playing with the gun when it discharged. At the point when the gun went off, appellant was aware that he had not successfully checked the chamber. Third, the investigating officer testified that appellant had to have held the gun very closely to T.R.E.’s arm because he found powder burns on her shirt.
The trial court made three additional findings that represent fair inferences from the record. The court found that appellant “waved the gun around,” “pointed [the gun] at T.R.E.,” and “touched the trigger.” T.R.E. testified that appellant “played” with the gun and pointed it at her, thus supporting the court’s finding that appellant waved the gun around and pointed it at T.R.E. The record also permits the inference that appellant “touched the trigger” because appellant had exclusive control of the gun and was otherwise playing with it when it discharged. Moreover, appellant admitted to the police that the weight of the gun might have forced his finger against the trigger.
Taking the court’s findings together, appellant’s acts demonstrate a conscious disregard of a substantial and unjustifiable risk that the gun would discharge and harm another. Appellant may not have wanted the gun to discharge or known the gun would discharge, but the court’s findings establish that he was aware of the risk that it could fire and consciously disregarded this risk. Disregarding the risk of discharge was a gross deviation from the behavior a reasonable 14-year-old would observe. Even if a reasonable juvenile would consider grabbing the gun from someone else, knowing it could discharge at any time, it would be a gross deviation from the standard of care to further handle it while pointing it at a person seated nearby. That the firearm discharged and hit T.R.E. is the logical and probable consequence of appellant’s conscious acts, establishing a reckless discharge of a firearm. See Cole, 542 N.W.2d at 52 (reasoning that recklessness is measure of risks created by conscious conduct).
Citing no authority for the proposition, appellant contends that he could not have recklessly discharged the pistol without proof of his conscious choice to pull the trigger. As discussed above, with or without specific proof that appellant pulled the trigger, there is ample evidence of appellant’s conscious disregard of a substantial, unjustifiable risk that the gun would discharge and injure T.R.E. Pulling the trigger may constitute one act establishing a conscious disregard of a substantial risk of discharge, but it is not necessary to such a finding. Moreover, as discussed above, the record permits the inference stated in the trial court’s findings, that appellant “touched the trigger.”
Appellant also argues that the evidence is insufficient to support his adjudication for reckless discharge of a firearm because the state failed to prove that his acts occurred within a municipality. Appellant specifically contests that the state proved the shooting took place in Minneapolis. A municipality is “any city, however organized.” Minn. Stat. § 414.011, subd. 2 (2002). Upon a careful review of the record, the evidence establishes that a Minneapolis police officer was dispatched to 2501 Cedar Avenue South, the security office of the Little Earth Housing Project, where he discovered the victim. The officer testified that the shooting occurred in the Little Earth Community, which is located on Cedar Avenue in south Minneapolis. Viewing reasonable inferences in the light most favorable to the adjudication, the evidence demonstrates that the shooting occurred in Minneapolis.
2. Unlawful Possession
Appellant also contests his adjudication for possession of a pistol by a minor, arguing that the evidence does not support a finding of unlawful possession because the evidence only established “fleeting, momentary, or transitory” possession. Appellant claims he possessed the firearm for the limited purpose of disarming it.
It is unlawful for a person under the age of 18 years to possess a pistol. Minn. Stat. § 624.713, subd. 1(a). To possess a pistol means to “knowingly possess” the weapon or to “consciously exercise dominion and control over it.” 10A Minnesota Practice, CRIMJIG 32.21 (1999). Yet, it is appropriate for a fact-finder in a firearms case to consider evidence that the possession was so fleeting that one could not find beyond a reasonable doubt that the accused knowingly and unlawfully possessed the weapon. State v. Houston, 654 N.W.2d 727, 734-35 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003).
The juvenile court found that an “extensive exercise of dominion and control occurred” and that the “possession was not fleeting or transitory.” The record supports this finding, establishing that appellant (1) took possession of the gun from another youth; (2) sat down next to T.R.E. and removed the magazine from the pistol; (3) began playing with the gun; and (4) put it up against T.R.E.’s arm. Although this possession may have been relatively brief, the evidence supports the finding that appellant knowingly grabbed the pistol and asserted dominion and control over it.
The evidence further establishes that appellant’s possession was not fleeting or transitory for the mere purpose of disarming the weapon. Appellant did not take possession of the gun to remove it from the room or hide it in a drawer. He instead exacerbated the risk of discharge by consciously playing with the pistol and pointing it at T.R.E. while seated right next to her. Viewing the evidence in the light most favorable to the adjudication, the evidence was sufficient to support a finding of knowing possession and insufficient to support a finding of fleeting or temporary possession.
Appellant also contends that he was wrongfully adjudicated guilty for minor in possession of a pistol because the county failed to prove that the exceptions, Minn. Stat. § 624.713, subd. 1(a)(i)-(iv), did not apply. Statutory exceptions are construed as affirmative defenses on which the defendant carries the burden of production. See State v. Taylor, 594 N.W.2d 533, 535 (Minn. App. 1999) (stating defendant carries burden of production on five statutory exceptions to permit requirement to carry a gun). Only when a defendant makes a prima facie showing that an exception applies will the presumption of innocence shift the burden back on the state to make out its case. State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991). Because appellant did not make a prima facie showing that he was under the direct supervision of a parent or guardian, that he handled a firearm for the purposes of a military drill, or that he possessed the firearm for police-approved target practice, the county was not required to disprove the exceptions in order to meet its burden. See Minn. Stat. § 624.713, subd. 1(a)(i)-(iv) (listing exceptions to prohibition against juveniles carrying a pistol).
Finally, appellant argues that the court violated Minn. Stat. § 609.035, subd. 1 (2002), by adjudicating him delinquent for two offenses committed against one victim arising out of the same behavioral incident. But Minn. Stat. § 609.035, subd. 1, which proscribes multiple punishments, does not prohibit adjudication of two offenses so long as they are charged as separate counts in one charging instrument, as they were here. See In re Welfare of Raino, 255 N.W.2d 398, 399 (Minn. 1977).
As appellant also asserts, Minn. Stat. § 609.035 bars sentencing on two counts arising from a single behavioral incident. But the district court, consistent with the statutory scheme of juvenile court dispositions, stated only one, indivisible, disposition for appellant’s delinquent state. See Minn. Stat. § 260B.198 (providing for disposition on a finding juvenile “is delinquent,” without reference to offenses proven). The juvenile court disposition does not give rise to the problem of multiple sentences that prompted enactment of Minn. Stat. § 609.035. Appellant is concerned that a “careless review of this file in the future could cause one to conclude that [appellant] had two adjudications and two dispositions.” The record permits the conclusion that appellant had two adjudications, and it gives no suggestion of a double disposition.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Though not cited by appellant, the Minnesota Supreme Court has stated in dicta that “reckless discharge of a firearm . . . requires proof that the defendant intentionally discharged a weapon in a municipality in a manner that the defendant should have known created an unreasonable risk of harm to others.” State v. Richardson, 670 N.W.2d 267, 283 (Minn. 2003) (citing 10A Minnesota Practice,CRIMJIG 32.10 (1999)) (emphasis added). Insofar as Richardson refers to an “intentional discharge,” it is addressing the most common scenario where a triggering of a firearm is not disputed, where pulling the trigger was one of the conscious acts taken in disregard of a known risk. Richardson does not control the outcome here.