This opinion will be unpublished and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:

S.G.V., Child.

Filed September 17, 1998


Willis, Judge

Scott County District Court

File No. 9706828

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant S.G.V.)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Harbinson, Scott County Attorney, Michael J. Groh, Mary Pieper, Assistant County Attorneys, 428 South Holmes Street, Shakopee, MN 55379 (for respondent)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Short, Judge.



Appellant S.G.V. challenges the trial court's finding that he was delinquent for brandishing a replica firearm on school property in violation of Minn. Stat. § 609.66, subd. 1d(a) (1996). We affirm.


Appellant S.G.V., who was then 12 years old and in the seventh grade, brought to his middle school a Super Nintendo game controller that was molded to resemble a pistol but was made of bright blue plastic and had an electric cord attached to the base of the handle. During a class, S.G.V. pulled the game controller from his backpack, pointed it at a female student, and pulled the trigger. The student testified that she thought the controller was a BB gun and that her "life was over."

The parties stipulated to the facts but disputed whether the game controller is a toy version of a gun that "reasonably appears" to be a real gun within the meaning of the statute. The district court found that the state had proven the allegations of the delinquency petition, concluding that the victim's testimony that the toy gun appeared real was "convincing" and that while the question of reasonableness was "troubling," the victim's belief was reasonable "from her vantage point, however momentarily."


In an appeal from a finding of delinquency, this court views the evidence in the light most favorable to the prosecution. In re Welfare of G.L.M., 347 N.W.2d 84, 85 (Minn. App. 1984).

Minn. Stat. § 609.66, subd. 1d(a) (1996), prohibits the possession, use, or brandishing of a "replica firearm" on school property. "Replica firearm" is defined as a "device or object" that is a "facsimile or toy version of, and reasonably appears to be a pistol, revolver, * * * or any other firearm." Minn. Stat. § 609.713, subd. 3(b)(2) (1996) (emphasis added); see also Minn. Stat. § 609.66, subd. 1d(c)(3) (1996) (incorporating definition of "replica firearm" from terroristic threats statute, Minn. Stat. § 609.713, subd. 3(b)(2)).

Appellant invites the court to treat the issue on appeal as one of statutory construction, that is, a question of whether the statutory phrase "reasonably appears" is to be applied from the perspective of the victim or from that of the fact-finder. This court reviews an issue of statutory construction de novo. State v. Peng, 524 N.W.2d 21, 23 (Minn. App. 1994). But we conclude that whether the Nintendo controller reasonably appeared to be a firearm was a question of fact, and we review the fact-finder's determination of that question.

In a juvenile delinquency trial, the court sits as the finder of fact. See Minn. R. Juv. P. 13.09 (providing that court determines whether allegations in charging document have been proven beyond a reasonable doubt). A portion of the trial court's order discusses the statute's application to appellant's Nintendo controller as if it were a question of law. But neither that discussion nor the photograph of the controller available to this court in the record makes the issue on appeal a legal determination that is reviewable de novo.

The statute establishes a standard of reasonableness for determining whether there is a sufficient similarity between the "device or object" and a firearm. See Minn. Stat. § 609.713, subd. 3(b)(2) ("replica firearm" is device or object that "reasonably appears to be" a firearm). The meaning of this standard is plain, leaving no room for judicial construction. See State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996) (stating that when statute is clear, judicial construction is "neither necessary nor permitted"). Had trial here been to a jury, the court would have been justified in declining to define for the jury the term "reasonably appears." Thus, our review is limited to the sufficiency of the evidence to support the trial court's finding that the allegation was proven.

Ordinarily, it is preferable for the court to make a "minimal attempt" to define the elements of the crime, rather than simply to read the statute to the jury. State v. Williams, 451 N.W.2d 886, 891 (Minn. App. 1990). Words of common usage, however, do not require further definition. State v. Backus, 358 N.W.2d 93, 95 (Minn. App. 1984). The term "reasonably appears" is of sufficiently common usage that it would require no further definition in instructing the jury nor does the statute's use of the term create a legal issue for de novo review by this court. Whether the term should be applied from the perspective of the victim or the fact-finder is a matter for argument by counsel, although certainly the fact-finder could not ignore its own perspective in assessing how an object might reasonably appear to a victim.

The trial court found that the controller was shaped like an oversized gun and that the victim thought it was real. The court concluded that this belief was reasonable, basing its conclusion in part on viewing the controller itself. Examined in the light most favorable to the prosecution, the evidence is sufficient to support the finding of delinquency.