This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




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

Filed April 14, 1998


Lansing, Judge

St. Louis County District Court

File No. J697650307

Alan L. Mitchell, St. Louis County Attorney, Melanie S. Ford, Assistant County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent)

Fred T. Friedman, Sixth Judicial District Chief Public Defender, Camille V. Doran, Assistant Public Defender, 1400 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Foley, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.



In an appeal from a delinquency adjudication for aiding and abetting possession of an explosive or incendiary device, J.D.H. challenges the district court's rulings on probable cause, double jeopardy, the sufficiency of the evidence, and an out-of-home placement. We affirm both the adjudication and disposition.


The district court adjudged J.D.H. delinquent for activities directed at Floodwood teacher Jeffrey Kletscher. Kletscher discovered rolled-up tin foil and a burst plastic bottle

outside his home on January 12, 1997. Kletscher notified the police, who recovered the items and placed them in evidence. The next day, a student told police in confidence that he saw J.D.H. and three other juveniles with the device on Friday, January 10, 1997. When questioned by police, J.D.H. and the three other juveniles admitted they made a "bomb" by placing aluminum foil and "The Works" toilet bowl cleaner in a 20-ounce plastic pop bottle, tightening the cap on the bottle, shaking the bottle, and throwing it on Kletscher's property. The bomb was the second such device discovered on Kletscher's property.

"The Works" toilet bowl cleaner contains approximately 20 percent hydrochloric acid, which reacts chemically with aluminum foil to create hydrogen gas and heat. The heat softens the plastic of the bottle, and the expanding gases ultimately cause the bottle to burst, making a loud noise.

The juveniles were charged with a felony, aiding and abetting possession of an explosive device under Minn. Stat. § 609.668, subds. 2 and 6(a) (1996), with reference to Minn. Stat. § 609.05 (1996). The three other juveniles admitted to the offense and were sentenced to two-week out-of-home placements. J.D.H. moved to dismiss based on lack of probable cause and double jeopardy, but the court denied his motion and held a fact hearing. The district court found J.D.H. possessed an explosive device as defined in Minn. Stat. § 609.668, subd. 1(a) (1996), and ordered a predisposition investigation. After the disposition hearing, J.D.H. received a two-week out-of-home placement in a corrective program using a group peer process supervised by trained staff. J.D.H. now appeals.


J.D.H. first argues the district court incorrectly determined the issue of probable cause because (1) possession is more of an individual crime; and (2) aiding and abetting requires criminal intent. Although the state questions the appealability of this pretrial order, the issue is not the right to appeal but its relevancy. J.D.H. appeals the sufficiency of the evidence to support an adjudication, which requires a much higher standard of proof than probable cause. State v. Holmberg, 527 N.W.2d 100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995). Thus, our analysis that the district court could find the evidence sufficient to prove the petition beyond a reasonable doubt necessarily resolves the issue of probable cause.

J.D.H. next argues his school suspension for this incident constitutes double jeopardy. We reject the state's argument that because this decision was part of a pretrial ruling the issue is not appealable. See Minn. R. Juv. P. 21.03 (appellate court may review matters in interest of justice); Minn. R. Civ. App. P. 103.04 (orders affecting appealed order are reviewable). Although we conclude that the double jeopardy ruling is appealable, we find J.D.H.'s double jeopardy argument to be meritless in light of the U.S. Supreme Court's decision in Hudson v. U.S., 118 S. Ct. 488, 493 (1997). See also In re Welfare of E.R.D., 551 N.W.2d 238, 243-44 (Minn. App. 1996) (school suspension that serves remedial goals does not constitute punishment for purposes of double jeopardy)

J.D.H. also questions the sufficiency of the evidence supporting his adjudication. To be sufficient to support a delinquency adjudication, the evidence must establish the truth of the petition "beyond a reasonable doubt." In re Welfare of S.W.T., 277 N.W.2d 507, 514 (Minn. 1979) (quoting In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970)). In reviewing a challenge to the sufficiency of the evidence to prove a juvenile petition, this court must review the record and the legitimate inferences from the record in a light most favorable to the decision. See In re Welfare of M.D.S., 345 N.W.2d 723, 733-34 (Minn. 1984).

Because J.D.H. admitted to making the device and participating in the decision to throw it at Kletscher's house, the key issue in this appeal is whether the device meets the statutory definition of an explosive device. Minn. Stat. § 609.668, subd. 1, provides:

(a) "Explosive device" means a device so articulated that an ignition by fire, friction, concussion, chemical reaction, or detonation of any part of the device may cause such sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects. Explosive devices include, but are not limited to, bombs, grenades, rockets having a propellant charge of more than four ounces, mines, and fireworks modified for other than their intended purpose. The term includes devices that produce a chemical reaction that produces gas capable of bursting its container and producing destructive effects. The term does not include firearms ammunition.

Minn. Stat. § 609.668, subd. 1(a).

Both the state and J.D.H. produced expert witnesses on whether the device was an explosive. Because neither expert testified the device was capable of producing significant physical destruction, J.D.H. contends it does not meet the statutory definition of an explosive device. The state's expert testified that the chemical reaction created by the cleaner and the aluminum foil creates significant quantities of heat, causing the container to explode, forcefully dispelling the plastic bottle fragments. If the bottle explodes close to someone's face, the person could "get a face full of hydrochloric acid," causing burns, eye pain, and severe irritation. The expert testified that the acid produced by the chemical reaction is "very, very, very corrosive." Although the expert acknowledged that the primary use of the device is to produce a loud noise, it has the incidental capacity to create physical destruction. J.D.H.'s expert testified that the device did not meet the statutory standard for an explosive, but the precautionary steps he followed in replicating the chemical reaction suggests the capacity to produce destructive effects. The district court had sufficient evidence to conclude that the device met the definition set forth in section 609.668, subd. (1)(a).

Finally, J.D.H. argues the district court abused its discretion in ordering a two-week out-of-home placement for this incident. Because the district court has broad discretion in choosing the appropriate disposition in a juvenile delinquency proceeding, see Minn. Stat § 260.185 (Supp. 1997), a reviewing court will affirm a district court's delinquency disposition so long as it is not arbitrary. In re Welfare of L.K.W., 372 N.W.2d 392, 397 (Minn. App. 1985). Although a reviewing court may rely on the sufficiency of evidence found anywhere in the record, In re Welfare of L.B., 404 N.W.2d 341, 345-46 (Minn. App. 1987), the district court must provide written findings supporting its delinquency disposition, including (a) why the disposition serves the best interests of the child; and (b) what alternative dispositions were considered by the court and why such dispositions are not appropriate in this case. Minn. Stat. § 260.185, subd. 1; see also Minn. R. Juv. P. 15.05 (incorporating and elaborating on these requirements).

J.D.H. argues that an out-of-home placement was excessive because his behavior merely constituted disorderly conduct, it was his first offense, he was disciplined at school and at home, he was remorseful, and he cooperated with law enforcement officials. But the district court considered and rejected these factors. In its oral findings in support of its disposition, the court noted that the incident took on "that threat of anonymous terrorism to someone who simply didn't deserve to be treated this way." The court rejected sentences of community service or a fine as not providing "a suitable deterrent from future criminal behavior." Finally, the court supported its disposition with written findings that explain the interests served by the disposition and the alternatives considered. The district court did not err in imposing a two-week out-of-home placement.