This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of:

R.E.D., Child.

Filed June 22, 1999


Harten, Judge

Ramsey County District Court

File No. J6-98-552598

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant Public Defender, 2829 University Avenue S.E., #600, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.



R.E.D., a juvenile, challenges his adjudication as delinquent on the grounds that by allowing the state to amend the petition after a hearing, the juvenile court violated the prohibition against double jeopardy and deprived him of the right to prepare his defense. Because there was no error of law in permitting the amendment, we affirm.


Where the material facts are undisputed, a reviewing court need not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). The facts in this matter are undisputed. R.E.D., then a seventh grader, told a hall monitor at his school that he was going to "shoot up" the house of the assistant principal. The hall monitor reported the statement to the assistant principal, who became disturbed and reported it to the principal, who in turn notified the school's police liaison officer.

The petition to adjudicate R.E.D. delinquent was headed TERRORISTIC THREATS and bore the following language:

On or about _____________________, in Ramsey County, Minnesota, ___________________ aiding and abetting and being aided and abetted by another, did threaten, directly or indirectly, to commit _______________________________________, a crime of violence, with the purpose to terrorize another and with reckless disregard of the risk of causing terror in another, such action constituting TERRORISTIC THREATS, contrary to Minn. Stat. § 609.713, subd. 1 and § 609.152, subd. 1(d).[1]

The blanks were filled in with the date, R.E.D.'s name, and "DO DRIVE BY SHOOTING AT ASST PRINCIPAL HOME." Minn. Stat. § 609.713, subd. 1 (1996) provides:

Whoever threatens * * * to commit any crime of violence with purpose to terrorize another * * * may be sentenced to imprisonment for not more than five years[.]

Minn. Stat. § 609.152, subd. 1(d) (1996), defines a "violent crime" as a violation of any one of some 40 statutes.

At a June 1998 hearing, R.E.D.'s attorney attempted to prove that R.E.D. lacked the "purpose to terrorize another" element of Minn. Stat. § 609.713, subd. 1. The direct examination of R.E.D. concluded:

"[D]id you stop and think that [your statement about shooting it up] would get back to [the assistant principal]?"


"[D]o you feel that you should have been able to figure that out?"


"At the time you said it, were you attempting to frighten [the assistant principal]?"


"Did you threaten to do any act at all toward [the assistant principal]?"


The phrase "drive-by shooting" was never mentioned.

At the end of that hearing, the court observed that the "any crime of violence" element "is almost uncontroverted, * * * because attempting to shoot a house, which is the statement, is a crime of violence, I assume." The court asked R.E.D.'s attorney if he would agree with that statement, and the attorney replied, "I would."

After this hearing, R.E.D.'s attorney argued that the "shoot it up" statement was not a threat of a drive-by shooting. At the following hearing, the court agreed:

The County Attorney * * * chooses to put in its Complaint what the crime of violence is and, in this case, they happen to plug in the Petition what is really kind of surplusage. * * *.

I mean, the drive by shooting is really surplus language. * * * I believe that this is a crime of violence. It may not be drive by shooting and I'm finding that it is not, but * * * does it fit another crime of violence. I suspect it does, but I don't know what that would be.* * * But I am going to give [the prosecutor] an opportunity to figure whether there is some amendment that can be made to that Complaint * * *.

* * * *

I don't think there's any doubt but that "I'm going to shoot it up", if carried out, shooting up a home would be a crime of violence of one sort or another.

The court concluded that R.E.D. had committed the offense of making a terroristic threat.

R.E.D.'s attorney then moved for amended conclusions of law, contending that finding that there was no threat of drive-by shooting was an acquittal and permitting the amendment of the charge (1) resulted in a violation of double jeopardy and (2) deprived R.E.D. of the ability to prepare adequately for the hearing.

The Double Jeopardy Clause offers protection against a subsequent prosecution for the same offense after an acquittal. State v. McKenzie, 542 N.W.2d 616, 618 (Minn. 1996). R.E.D.'s double jeopardy argument depends on his view that the court acquitted him of terroristic threat when it found that saying "I'm going to shoot it up" was not a threat of a drive-by shooting. But that finding did not pertain to any element of Minn. Stat. § 609.713, subd. 1, because the statute reads, "Whoever threatens * * * to commit any crime of violence with purpose to terrorize another * * * may be sentenced to imprisonment for not more than five years.["] (Emphasis added.). The finding that R.E.D.'s threat did not apply to one particular crime was not an acquittal of terroristic threat.

There is no statute designed specifically to deter and punish the threat of drive-by shootings;[2] Minn. Stat. § 609.713, subd. 1, was designed to deter and punish threats of any crime of violence. See State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996). (Minn. Stat. § 609.713 is intended to deter and punish "the future act threatened, as well as the underlying act constituting the threat"). Logically, the finding that R.E.D. did not threaten one particular crime cannot equate to an acquittal. Absent R.E.D.'s acquittal of making a terroristic threat, his double jeopardy claims fails.

R.E.D.'s claim that the amendment of the petition deprived him of the ability to prepare for the hearing also fails. The hearing at which he testified occurred before the court permitted amendment. R.E.D. made no attempt to defend against a charge of threatening a drive-by shooting; his defense was lack of intent, viz., he had not intended to cause fear. The subsequent amendment of the petition made this defense more, not less, relevant.

We conclude that by permitting the amendment of the petition to bring it into conformity with the facts and the statute the juvenile court neither violated R.E.D.'s right against double jeopardy nor deprived him of the right to prepare for trial.


[1] Minn. Stat. § 609.152, subd. 1(d) (1996), is now Minn. Stat. § 609.1095, subd. 1(d) (1998).

[2] Minn. Stat. § 609.66, subd. 1e (1998), makes drive-by shooting a felony apart from any threat.