may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed August 10, 1999
Anoka County District Court
File No. J99853178
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Robert M.A. Johnson, Anoka County Attorney, Mary Katherine Doty, Assistant County Attorney, Seventh Floor Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
Appellant, a juvenile, challenges a trial court order adjudicating that he possessed a dangerous weapon on school property. Appellant contends that he cannot be found guilty absent evidence that he "knowingly possessed" the weapon. Because the record supports a finding that appellant should have known he was violating the law, we affirm.
C.R.M., age 15, is a student at Anoka County Day School. On November 2, 1998, he brought a four-inch, folding-blade knife to school. Appellant admitted that the knife was his and that he put it in his coat pocket, where it was found during a routine search, but he claimed he had been using the knife for whittling the prior weekend and that he "forgot to take it out" of his coat.
Appellant was charged with possession of a dangerous weapon on school property in violation of Minn. Stat. § 609.66, subd. 1d(a) (1996). After hearing the evidence in the case, the trial court judge noted that he believed appellant brought the knife to school "accidentally." Appellant moved for a directed verdict, arguing that there was no evidence that he knew the knife was in his coat pocket. The trial court found appellant guilty of the charged offense, reasoning that Minn. Stat. § 609.66, subd. 1d(a), does not require that appellant "knew he had that knife when he walked [into school]."
The construction of a statute is a question of law, reviewable de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).
Minn. Stat. § 609.66, subd. 1d(a) (1996), declares it a felony offense if one "possesses * * * a dangerous weapon * * * on school property." Conceding that the knife found in his pocket was a dangerous weapon, appellant contends that the state failed to prove that he "knowingly possessed" the knife. Appellant also argues that the record shows his possession of the knife was "unwitting."
There is support for the proposition that a defendant cannot be found guilty for unwitting possession. See, e.g., State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (noting that conviction for unlawful possession of a controlled substance requires proof of conscious possession, either actual or constructive); 1 Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law, § 2.12(d) (1986) ("the mere unwitting possession of an item cannot be declared criminal"). But this case does not involve evidence of unwitting possession--a case in which a defendant bears no responsibility for the fact of possession.
Despite the sometimes-innocuous nature of pocket knives, there was testimony establishing that the students were aware that weapons, along with common items like pagers and candy, were prohibited on school grounds. Indeed, appellant told a police officer that he "patted himself down" when he came to school but missed the knife. Thus, appellant was aware that he had a duty to avoid bringing a weapon to school. Testimony also established that appellant knowingly possessed the knife a day or two prior to the offense, having put the knife in his coat, and that he later "forgot to take it out." Although the trial court noted his belief that appellant accidentally brought the knife to school, the court made no finding that appellant's possession of the knife was unwitting.
Because the record suggests that appellant should have known the knife was in his coat, the question presented is whether appellant can be criminally sanctioned for negligent possession of a prohibited object. In other words, we need only determine whether forgetfulness is a valid affirmative defense to a possession charge.
This case is altogether analogous to cases that have been authoritatively decided against passengers who board airplanes while accidentally possessing weapons. The Federal Aviation Act makes it a crime for a passenger to board or attempt to board an aircraft if that passenger "has on or about his person or his property a concealed deadly or dangerous weapon." 49 U.S.C. app. § 1472 (l)(1) (1988). In U.S. v. Garrett, 984 F.2d 1402 (5th Cir. 1993), a federal appellate court reviewed a case in which a passenger attempted to board an aircraft but forgot she had a gun in her purse. The court declined to construe section 1472(l)(1) as a strict liability crime. Id. at 1406. Instead, the court determined that a minimum level of mental culpability was appropriate, holding that a passenger violated the Federal Aviation Act if "she either knew or should have known that the concealed weapon in question was on or about her person or property while aboard or attempting to board the aircraft." Garrett, 984 F.2d at 1413; see also, State v. Wetsch, 511 N.W.2d 490, 492 (Minn. App. 1994) (contrasting a strict liability statute with one that demands a showing of knowledge or "reason to know").
The evidence in the present case establishes that appellant knew he had a duty to determine whether the knife was in his coat, but failed to do so. Because there is sufficient evidence that appellant should have known that the knife was in his coat, we affirm the trial court.
We note that the federal statute in Garrett was a misdemeanor offense and that the statute in question here, Minn. Stat. § 609.66, subd. 1d(a), is a felony offense. The Garrett court determined that the "should have known" standard was appropriate in large measure because section 1472(l)(1) was only a misdemeanor and not a felony. Garrett, 984 F.2d at 1412-13.
Although appellant raises very legitimate concerns about the propriety of a felony conviction based upon unknowing possession, felony offenses based upon a negligent act or a negligent failure to act are permissible. See, e.g., Minn. Stat. § 609.205 (providing a penalty of up to ten years in prison for culpable negligence resulting in the death of another); Minn. Stat. § 609.576(b)(3) (1998) (providing a penalty of up to three years in prison for culpable negligence resulting in a fire that causes property damage).
More important, the disposition in this case demonstrates the need for caution in viewing the offense here in terms of its "felony" category. In its dispositional order, the trial court required appellant to continue to meet the conditions imposed for appellant's earlier criminal acts, write a letter of apology, and possess no knives until his 19th birthday. We are mindful, given circumstances where a conviction for negligent conduct involves a more substantial risk of loss of liberties, that a different approach may be appropriate. See State v. Grover, 437 N.W.2d 60, 63 (Minn. 1989) (declaring, in the context of criminal negligence cases, that courts will require a showing of a gross deviation from the usual standard of care unless the legislature has clearly declared that a showing of ordinary negligence, in the civil sense, is sufficient evidence of a crime). We are also mindful that there is little reason to expect the occurrence of negligent possession cases where severe loss of liberties would occur. No doubt, most violations of the weapons-in-school statute would involve more severe wrongdoing with a more serious sanction. But there is equal reason to expect that more severe violations would arise on proof that the weapon was taken to school with either actual or constructive knowledge, not through mere negligence. See, e.g., State v. Florine, 303 Minn. at 104, 226 N.W.2d at 610 (discussing scope of doctrine of constructive possession).
 An example of unwitting possession would be when a classmate puts a knife in a student's coat without the student's knowledge.
 Appellant contends that the trial court could not find him guilty on evidence of his negligence in carrying the knife unless it is determined as a matter of law that the governing statute declares "strict liability" for possessing a weapon at a school. No doubt, guilt without proof of a knowing offense would require such a legal conclusion. See, e.g., State v. Wetsch, 511 N.W.2d 490, 494 (Minn. App. 1994) (determining that statute provides for strict liability). But appellant's examination of the doctrine of strict liability is premised on an erroneous assumption that knowledge is not shown by proving that appellant should have known of his wrongful conduct. The issue of whether a knowing-possession case can be established by proof of negligence does not involve the question of strict liability.
 Our result is ratified by the fact that the legislature has chosen to make other types of negligent behavior a basis for criminal sanction. See, e.g., Minn. Stat. § 609.226 (1998) (negligently allowing a dog to run uncontrolled is a misdemeanor); Minn. Stat. § 609.205 (1998) (culpable negligence resulting in the death of another is a felony).