This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the Welfare of: D. M. W.


Filed November 22, 2005


Stoneburner, Judge


Hennepin County District Court

File No. J804061195


Leonardo Castro, Chief Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)


Mike Hatch, Attorney General, Suite 1800, Bremer 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 Worke, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his adjudication of delinquency, arguing that the evidence was insufficient to support a juvenile court finding that he committed an act with intent to cause fear of immediate bodily harm, and that the district court erred by adjudicating him delinquent for an offense of which he had no notice.  Because we conclude that appellant had sufficient notice of the charge for which he was adjudicated, and the evidence was sufficient to support the juvenile court’s finding, we affirm.



            Juvenile D.M.W. was arguing with his brother over a television game system.  Mother intervened in the argument and approached D.M.W. to take the game device.  According to mother’s trial testimony, D.M.W. “sort of like tackled me . . . he ran up to me and pushed me and we ended up in the chair, and the chair dumped over, and he had me like pinned down in the chair while the chair was dumped over backwards.”  Mother testified that she was screaming at D.M.W. to get up, they struggled a little bit, and she could not get up.  After a while, D.M.W. got up and mother called the police to report what had occurred. 

            A delinquency petition was filed alleging that D.M.W. committed domestic assault, a misdemeanor, “in violation of Minn. Stat. § 609.2242, subd. 1 (2003).”  The description of the offense stated: “that on or about July 28, 2004, at [residence] [D.M.W.], dob 8/20/1988, intentionally inflicted or attempted to inflict bodily harm upon a family or household member [mother].”

            At trial, mother described the incident and testified that she was “angry and slightly intimidated” by D.M.W.’s actions, but did not think that he would hit her that day, and she did not feel “real unsafe,” or “real scared.”  D.M.W. did not testify.  The juvenile court judge asked the parties if either wanted her to consider “lesser includeds.”  The prosecution asked which offenses the juvenile court was considering as lesser included, and D.M.W.’s attorney, referring to a rejected plea-offer, pointed out that disorderly conduct was not a lesser-included offense of domestic assault.  The juvenile court judge did not identify any lesser-included offenses and asked if either counsel had any in mind.  Each lawyer stated that no lesser-included offenses should be considered.

            Neither party made an opening statement.  The prosecutor argued in closing that D.M.W. was charged with committing “a domestic assault” and that the evidence of D.M.W. tackling his mother into a chair, pushing her back and pinning her down “has proved this charge beyond a reasonable doubt.”  D.M.W.’s attorney, in closing argument, referred to the descriptive language in the petition and argued that the evidence did not establish domestic assault by infliction of bodily harm beyond a reasonable doubt.  The juvenile court held that because the petition did not specify a particular subsection of the statute, D.M.W. was charged with both committing a domestic assault by infliction of bodily harm, and with committing a domestic assault by committing an act with intent to cause fear in another of immediate bodily harm.  The juvenile court then stated that although the evidence was not “crystal clear . . . by remaining on top of [mother] while she was on the floor and pinning her arms down in this way, it appears clear that [D.M.W.] intended to dominate her by the use of physical force . . . and in doing so it can be inferred from his actions that he had an intent to cause fear in her of immediate bodily harm.”  

            D.M.W.’s counsel objected that the petition did not put D.M.W. on notice that he was charged with intending to inflict fear of bodily harm, but the juvenile court adjudicated D.M.W. delinquent for violating Minn. Stat. § 609.2242, subd. 1(1), by committing an act with intent to cause fear in another of immediate bodily harm.  The juvenile court imposed a disposition which is not at issue in this appeal, and this appeal followed.



I.          Notice of charge

            D.M.W. argues that the delinquency petition only gave him notice of a charge under Minn. Stat. § 609.2242, subd. 1(2) (2004), assault by intentionally inflicting or attempting to inflict bodily harm on another, and that his due process rights were violated when the district court adjudicated him delinquent based on a finding that he committed assault in violation of Minn. Stat. § 609.2242, subd. 1(1), by committing an act with intent to cause fear in another of immediate bodily harm or death.  A reviewing court will reverse a conviction when the conviction is at variance with the charge “only if this variance deprived the defendant of a substantial right, namely, the opportunity to prepare a defense to the charge against him.  State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (quotation omitted).  “Ultimately, [a reviewing court] must ask whether the erroneous charge denied the defendant the opportunity to prepare an adequate defense.”  Id.

            A juvenile is guaranteed the constitutional right to notice of the charge against him.   In re Welfare of Raino, 255 N.W.2d 398, 399 (Minn. 1977).  “A juvenile court proceeding is not a criminal proceeding, but a juvenile court delinquency petition is similar to an indictment or information with respect to the issue of sufficiency and certainty of the charges made.”  Id.  “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.”  Id.(quotation omitted).  Every petition alleging a child is delinquent must contain “a description of the alleged offense and reference to the statute or ordinance which was violated . . .”  Minn. R. Juv. Delinq. P. 6.03, subd. 3 (2005).  “It is elementary that one must be tried and convicted only of the accused charge or a lesser included offense.”[1]  State v. Voracek, 353 N.W.2d 219, 220 (Minn. App. 1984).  Where statutory sections are distinct, charging separate offenses, one cannot be guilty of violating a section for which one is not charged. 220 (concluding that Voracek could not be convicted under Minn. Stat. § 169.121, subd. 1(d) (1984), when he was charged with violating § 169.121, subd. 1(a)).  If a juvenile might be found guilty of an offense with which he was not charged, did not prepare for, and did not defend, the entire juvenile system would be short-circuited.  Raino, 255 N.W.2d at 400. 

            Minn. Stat. § 609.2442 subd. 1(1) and (2) are separate offenses.  Defendants are frequently charged with violating both subparts of subdivision 1.  No cases in which a defendant was charged with only one subpart but was convicted of the other subpart have been brought to our attention.  The standard jury instructions for the subparts are separate because the subparts require proof of different elements.

            The petition in this case charges a violation of Minn. Stat. § 609.2442, subd. 1, but the descriptive portion of the charge only relates to subpart (2), an intentional infliction or attempt to inflict bodily harm.  The better charging practice would have been for the petition to specifically reference both subparts in the citation to the statute as well as in the description of the offense.  The record, however, demonstrates that both counsel questioned mother about what, if anything, she feared during the incident, but failed to question her at all about what bodily harm was actually inflicted during the incident.  We therefore conclude that D.M.W. was not deprived by the charging document of the opportunity to prepare a defense to the charge of committing a domestic assault by committing an act with intent to cause fear of immediate bodily harm, and adjudication under subd. 1(1) was not reversible error.

II.        Sufficiency of evidence

            D.M.W. argues that the juvenile court erred in finding that he committed an act with intent to cause fear of bodily harm because mother stated at least three times in her testimony that she did not think D.M.W. would hit her, and there is no other evidence in the record that D.M.W. intended to cause mother fear of immediate bodily harm or death.  On appeal from a determination that each element 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) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).  “We are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence.”  Id.

            The term “with intent to” means that the “actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”  In re Welfare of T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001) (quotation omitted).  The intent of the actor, not the effect on the victim, is the focal point for inquiry.  Id.“Intent may be proved by circumstantial evidence, including drawing inferences from the defendant’s conduct, the character of the assault, and the events occurring before and after the crime.”  Id.  The record in this case supports the juvenile court’s conclusion that D.M.W. intended to cause fear of immediate bodily harm when he pinned his mother to the floor and would not let her rise.

            D.M.W. also asserts that the juvenile court did not apply the beyond-a-reasonable-doubt standard in making its determination that he acted with intent to cause fear of immediate bodily harm in mother.  D.M.W. bases this argument on the juvenile court’s statement that “it can be inferred from his actions” that D.M.W. acted with intent to cause fear of immediately bodily harm.  A fact can be proved by direct or circumstantial evidence, and a fact is proved by circumstantial evidence when that fact can be inferred from other facts proved in the case.  The district court’s reference to its use of circumstantial evidence did not indicate a dilution of the burden of proof.


[1] The parties agree that Minn. Stat. § 609.2242 subd. 1(1) is not a lesser-included offense of subd. 1(2), therefore we do not address arguments made concerning conviction of lesser-included offenses.