This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-1557
In the Matter of the Welfare of:
L.M., Child.
Filed June 19, 2000
Steele County District Court
File Nos. J19950110, J19950111, and J19950112
John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant L.M.)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas L. Ruth, Steele County Attorney, Scott L. Schreiner, Assistant County Attorney, Box 616, Owatonna, MN 55060 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Amundson, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
WILLIS, Judge
Appellant L.M. argues that his adjudication for disorderly conduct is unconstitutional under the First Amendment, that there is insufficient evidence to support his adjudication for aiding and abetting criminal damage to property, and that the juvenile court erred by adjudicating him delinquent for juvenile petty offenses and by imposing probation for an indefinite period of time as a disposition for a juvenile petty offense. We affirm in part, reverse in part, and remand.
This court ordered consolidation of L.M.’s appeals arising from three trials held serially in juvenile court in May 1999.
On February 20, 1999, at about 1:30 a.m., Owatonna police officer Jason Cotner responded to a report of a disturbance. Officer Cotner saw three young men walking from the area of the reported disturbance, including L.M., and ordered the three to place their hands on his vehicle. Two complied, but L.M. refused and began to swear at the officer and make “wild arm movements.” Officer Cotner eventually placed L.M. in a headlock, “took him to the ground,” and noticed the odor of alcohol on L.M.’s breath. Officer Cotner administered a preliminary breath test, which L.M. failed. L.M. was cited for, and later found to have committed, the offenses of disorderly conduct and minor consumption of alcohol.
At approximately 2 a.m. on December 1, 1998, A.K. looked out a window of her Owatonna home after she heard noises coming from a truck that she and her then-fiancée, S.K., owned. A.K. saw that a door of the truck was open and saw at least two people in the truck. She woke S.K., who ran outside and saw three young men in or near the truck. One fled toward railroad tracks near the home. S.K. grabbed the other two, who were leaning into the cab of the truck through the driver’s-side-door opening, and one escaped immediately. S.K. held the remaining person in a headlock for 30-40 seconds before heescaped and ran toward the railroad tracks. One of the truck’s windows was broken, internal panels were damaged by an apparent attempt to remove speakers, wires connected to one amplifier inside the truck had been cut, and another amplifier had been removed from the truck and was on the ground next to the vehicle.
An Owatonna police officer responding to a call from A.K.stopped L.M. as he was running near the scene of the truck break-in. The officer gave L.M. a preliminary breath test, which he failed. And the officer discovered drug paraphernalia during the course of a pat-down search. The officer brought L.M. back to A.K. and S.K.’s home, and S.K. identified L.M. as the person he had restrained.
L.M. was charged with, and later found to have committed, the offenses of aiding and abetting felony criminal damage to property, tampering with a motor vehicle, minor consumption of alcohol, and possession of drug paraphernalia.
The juvenile court adjudicated L.M. delinquent for committing the offense of misdemeanor theft arising from the theft of a portable compact-disc player from a home. At the disposition hearing, the court determined that the charge was a juvenile petty offense and that the adjudication of delinquency was, therefore, in error. But the dispositional order does not reflect correction of the error.
D E C I S I O N
I. Disorderly Conduct (C1-99-1557).
L.M. argues that, under the First Amendment, his adjudication for disorderly conduct was an unconstitutional application of Minn. Stat. § 609.72, subd. 1(3) (1998). “Charges brought under Minn. Stat. § 609.72, subd. 1(3) must be closely scrutinized.” State v. Klimek, 398 N.W.2d 41, 42 (Minn. App. 1986). Section 609.72, subdivision 1(3), provides:
Whoever does any of the following in a public or private place * * * knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
* * * *
(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
Because “section 609.72, subd. 1(3), clearly contemplates punishment for speech that is protected under the First and Fourteenth Amendments, we can [only] uphold its constitutionality by construing it narrowly.” In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn. 1978). When reviewing a claim that First Amendment defects render the evidence insufficient to sustain a determination that a defendant’s behavior constitutes disorderly conduct under subdivision 1(3), we consider the defendant’s conduct in combination with his language, and both are viewed in the context of the surrounding circumstances. In re Welfare of M.A.H. and J.L.W., 572 N.W.2d 752, 757 (Minn. App. 1997); Klimek, 398 N.W.2d at 43 (considering defendant’s conduct and language as a “package”). We review the evidence in the light most favorable to the state and then determine, as a matter of law, whether a defendant's conduct and language fall outside the protection of the First Amendment. M.A.H., 572 N.W.2d at 757. Thus, we will affirm a disorderly conduct conviction under subdivision 1(3) only where a defendant’s conduct and language constitute incitement or “fighting words.” Id. at 758 (concluding that in S.L.J., the supreme court “substituted for the language of [subdivision 1(3)] a standard encompassing aspects of United States Supreme Court case law” on both incitement and fighting words).
A. Incitement.
The juvenile court made no written or oral findings supporting its conclusion that L.M. committed the offense of disorderly conduct. To conclude that L.M.’s conduct and language constituted incitement, the juvenile court would have had to have found that L.M.’s conduct and language were “intended to and likely to produce imminent lawless action by the surrounding [persons].” Id. (citations omitted).
Officer Cotner testified that the two other young men he stopped with L.M. complied with his order to place their hands on his car. And there is no evidence that would support a finding that L.M.’s conduct and language was intended to or likely to produce imminent lawless action by the other two. Thus, even viewing the evidence in the light most favorable to the state, we conclude that L.M.’s behavior was not incitement constituting disorderly conduct within the meaning of Minn. Stat. § 609.72, subd. 1(3).
B. Fighting Words.
To conclude that L.M.’s conduct and language constituted “fighting words,” the juvenile court would have had to have found that L.M.’s conduct and language constituted “personal insults” that “under the circumstances would be inherently likely to provoke retaliatory violence by the police at whom the insult was directed.” M.A.H., 572 N.W.2d at 758 (citations omitted).
Officer Cotner testified that after he directed L.M. to place his hands on Cotner’s car, L.M. refused and became “very loud and boisterous, arguing that he didn’t have to do anything and making wild arm movements, * * * [and] began swearing, not complying with any of my requests.” Officer Cotner stated that L.M. continued to ignore Cotner’s requests and that Cotner then “put my hand on his back to push him towards the car and he swung around on me, continuing to make these wild arm movements.” Officer Cotner stated that, at this point, he “had absolutely no control of the situation, so I had to gain control of him because he was being the main problem, the other two were complying.” Officer Cotner then “put [L.M.] in a headlock and took him to the ground.” When asked specifically what L.M. was saying, Officer Cotner replied that L.M. was angrily yelling “every expletive I can think of in the book.”
But, as was noted by this court in M.A.H., “[e]very speech-related disorderly conduct conviction upheld by Minnesota appellate courts since S.L.J. has involved either an explicit verbal or physical threat of violence or a situation where the victims were placed in fear of imminent physical harm.” 572 N.W.2d at 757. While Officer Cotner testified that he felt he had to restrain L.M. physically to gain control of the situation, he did not testify that he was threatened in any way or that he was placed in fear of imminent physical harm. Thus, even viewing the evidence in the light most favorable to the state, we conclude that L.M.’s conduct and language cannot be construed as fighting words that constitute disorderly conduct within the meaning of Minn. Stat. § 609.72, subd. 1(3).
We do not condone L.M.’s behavior, which arguably could have supported a charge of obstruction of legal process. But we are required to give the disorderly conduct statute a narrow reading, and the state has not carried its burden of demonstrating that L.M.’s behavior was likely to provoke imminent lawless action or that it rose to the level of fighting words. We therefore reverse the finding of the juvenile court that L.M. committed the offense of disorderly conduct, in violation of Minn. Stat. § 609.72, subd. 1(3).
II. Aiding and Abetting Criminal Damage to Property (CX-99-1556).
L.M. argues that the evidence does not support the juvenile court’s adjudication that L.M. aided and abetted criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 1(3) (1998), and Minn. Stat. § 609.05 (1998). When reviewing a sufficiency-of-the-evidence claim, this court views the record and reasonable inferences therefrom in the light most favorable to the juvenile court’s adjudication. In re Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997).
L.M. argues that the state did not demonstrate beyond a reasonable doubt that he aided and abetted the criminal damage to A.K. and S.K.’s truck. But it is well settled that a conviction may be based on the testimony of a single witness. See, e.g., Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984). And a witness who identifies a defendant “need not be positive and certain”; rather, “it is enough for a witness to testify that it is his opinion, belief, impression, or judgment that the defendant is the person he saw commit the crime.” State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969) (citation omitted). Here, a victim of the crime, S.K., testified that he had placed one of the young men who were in his truck in a headlock for 30-40 seconds and that during that time he got “a good look” at the perpetrator. And S.K. testified that he was “98% certain” that L.M. was the person he had placed in the headlock. Additionally, S.K. testified that on the evening of the crime he had identified L.M. as the person he had placed in a headlock when the police brought L.M. back to the crime scene. S.K.’s testimony alone is sufficient support for the juvenile court’s adjudication.
But circumstantial evidence can also be used to support an adjudication if it reasonably supports an inference of guilt. See State v. Combs, 292 Minn. 317, 321, 195 N.W.2d 176, 178 (1972). L.M. was stopped after the arresting officer saw him running within three blocks of the scene soon after the crime was committed. The officer testified that L.M.’s clothing had “burrs and briars” of the type that are released by plants that grew along the railroad tracks near A.K. and S.K.’s residence, and S.K. testified that L.M. fled toward the railroad tracks when he escaped.
Viewing the evidence in the light most favorable to the adjudication, we conclude that the district court did not err by finding that L.M. aided and abetted criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 1(3), and Minn. Stat. § 609.05.
III. Disposition.
The district court issued its findings regarding the three separate petitions in one consolidated order, which concluded that L.M. “is adjudicated a juvenile delinquent.” While L.M. does not claim that the district court erred in adjudicating L.M. delinquent after finding that he had committed the offense of aiding and abetting felony criminal damage to property, he does argue that the district court erred in adjudicating him delinquent on the other offenses it found L.M. had committed.
A. Court of Appeals File No. C1-99-1557.
The juvenile court found that L.M. committed the offense of minor consumption of an alcoholic beverage, in violation of Minn. Stat. § 340A.503, subd. 1(2) (1998), which is a juvenile petty offense. Minn. Stat. § 260.015, subd. 22 (defining “juvenile alcohol offense” to include any violation of Minn. Stat. § 340A.503), subd. 21 (defining “juvenile petty offense” to include “juvenile alcohol offense”) (1998). L.M. may not, therefore, be adjudicated delinquent for minor consumption. Minn. R. Juv. P. 17.14, subd. 2(A); Minn. Stat. § 260.195, subd. 1 (1998). We remand to the juvenile court to amend its May 20, 1999, order to reflect that L.M. is adjudicated a juvenile petty offender for the offense of minor consumption of an alcoholic beverage.
L.M. also argues that the juvenile court erred in the dispositional order for the minor consumption and disorderly conduct offenses by placing L.M. on probation for “an indefinite period of time.” The transcript of the dispositional hearing shows that the juvenile court imposed probation only for the disorderly conduct offense, which we have reversed. We therefore remand to the juvenile court its August 11, 1999, order in file number J3-99-50112 to vacate the probation provision.
B. Court of Appeals File No. CX-99-1556.
The juvenile court found that L.M. committed the offenses of aiding and abetting felony criminal damage to property in the first degree, in violation of Minn. Stat. § 609.595, subd. 1(3), and Minn. Stat. § 609.05; misdemeanor tampering with a motor vehicle in violation of Minn. Stat. § 609.546 (2) (1998); misdemeanor minor consumption of an alcoholic beverage, in violation of Minn. Stat. § 340A.503, subd. 1(2); and possession of drug paraphernalia, a petty misdemeanor, in violation of Minn. Stat. § 152.092 (1998). Any offense committed by a juvenile that would be a misdemeanor if committed by an adult is a juvenile petty offense, subject to exceptions not applicable here. Minn. Stat. § 260.015, subd. 21. Thus, L.M. should have been adjudicated a juvenile petty offender for the misdemeanor and petty misdemeanor offenses that the juvenile court found he committed. Minn. R. Juv. P. 17.14, subd. 2(A); see Minn. Stat. § 260.015, subd. 5 (1998) (excluding juvenile petty offenders from definition of “delinquent child”).
We therefore remand to the juvenile court to amend its May 20, 1999, order to reflect that L.M. is adjudicated a juvenile petty offender for the offenses of misdemeanor tampering with a motor vehicle, misdemeanor minor consumption of an alcoholic beverage, and petty misdemeanor possession of drug paraphernalia.
C. Court of Appeals File No. C8-99-1555.
The juvenile court found that L.M. committed the offense of misdemeanor theft, in violation of Minn. Stat. § 609.52, subd. 2(1) (1998). At the dispositional hearing the juvenile court stated that “the record should be amended to state that [L.M.] be adjudicated a juvenile petty offender” with regard to this charge. But the subsequent dispositional order does not reflect any such amendment, and the state does not object to the amendment. We therefore remand to the juvenile court to amend its May 20, 1999, order to reflect that L.M. is adjudicated a juvenile petty offender for the misdemeanor-theft offense.
Affirmed in part, reversed in part, and remanded.