This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-78

 

 

In the Matter of the Welfare of:  K.L.W.

 

 

Filed September 5, 2006

Reversed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 27-JV-05-1945

 

Jordan S. Kushner, Law Office of Jordan S. Kushner, 431 South Seventh Street, Suite 2446, Minneapolis, MN 55415; and

 

Teresa J. Nelson (of counsel), American Civil Liberties Union of Minnesota, 450 North Syndicate Street, Suite 230, St. Paul, MN 55104 (for appellant K.L.W.)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant K.L.W. challenges the district court’s adjudication that he is a juvenile petty offender for violating Minnesota’s disorderly conduct statute.  Because we conclude there was insufficient evidence to support the adjudication, we reverse.

D E C I S I O N

On appeal from a determination that each of the elements of a delinquency petition have been proved beyond a reasonable doubt, “an appellate court is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination.”  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996) (citing State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978)).  “We are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence.”  Id.  Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996). 

Appellant was accused of violating the disorderly conduct statute, Minn. Stat. § 609.72, subd. 1(3) (2004).  It provides that one who “[e]ngages 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” and is “in a public or private place, including on a school bus, 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.”  Id.  The state concedes that the required elements for violating the statute do not exist.  We agree. 

Appellant drew a cartoon in his personal notebook.  Nothing in the record indicates that appellant intended for anyone to see the drawing.  Appellant drew the cartoon in one area of the school, and the cartoon was subsequently found by a teacher.   His conduct was not abusive, boisterous, noisy, offensive, or obscene.  “[W]ords can only be obscene if they are erotic,” and here neither the words in the cartoon nor the cartoon itself is erotic.  See In re Welfare of S.L.J., 263 N.W.2d 412, 416 n.3 (Minn. 1978) (citing Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780 (1971)).  Appellant did not know or have reasonable grounds to know that his behavior may “arouse alarm, anger, or resentment in others.”

            Reversed.