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In re Welfare of P. E. O.

Court of Appeals of Minnesota

May 13, 2013

In the Matter of the Welfare of: P. E. O., Child

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-JV-12-3380

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Calvin Giles, Assistant County Attorney, Minneapolis, Minnesota (for respondent state).

David W. Merchant, Chief Appellate Public Defender, Susan J. Andrews, Assistant Public Defender, St. Paul, Minnesota (for appellant child).

Considered and decided by Kirk, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

HUDSON, Judge.

Appellant challenges the district court's adjudication of delinquency for gross-misdemeanor fifth-degree assault, arguing that the state failed to prove beyond a reasonable doubt that she was not acting in self-defense when she bit a security guard. We affirm.

FACTS

On January 23, 2012, M.V. was working as a security guard at a Walgreens store in Minneapolis. Around 5:30 p.m., M.V. was informed by a Walgreens employee that two teenage girls inside the store, later identified as appellant P.E.O. and M.S., were attempting to steal a can of hair spray. Each girl was carrying a large purse with a shoulder strap. M.V. positioned himself by the door to see if either girl would set off the store alarm when they left.

M.S. exited the store without incident, but appellant set the alarm off as she followed M.S. out of the store. M.V. asked to see the contents of her purse, and appellant opened her purse, quickly shut it, and proceeded out the exit. Because appellant made it difficult for him to inspect her bag, M.V. followed appellant out of the store and grabbed her purse strap as she was exiting. Appellant returned into the store as M.V. continued to hold her purse strap, despite M.S. encouraging appellant to leave. M.S. eventually followed appellant and M.V. back into the store.

M.V. looked through appellant's purse a second time, found no stolen goods, and the girls started to leave again. After M.S. had already left and as appellant was exiting the store, M.V. grabbed appellant's purse strap a second time because he wanted to search M.S.'s purse. All three parties were a few feet outside of the store at this point. M.V. refused to release appellant's purse strap until he was able to search M.S.'s purse, and threatened to call the police if the girls did not cooperate. After appellant urged M.S. to "give up the stuff, " M.S. took a packet of cough medicine out of her purse and tossed it to M.V. M.V. asked her where the can of hair spray was, and in response M.S. took a container of hair spray from her purse, cocked her arm, and prepared to throw the canister at M.V.

The accounts differ as to what happened next. M.V. testified that when M.S. threw the can of hair spray, he moved to the side to dodge the can, pulling appellant with him because he was still holding her purse strap. M.V. claimed that as he did so, appellant moved her head towards his hand and bit his right middle finger. After he was able to pull his hand away from appellant, M.V. threw appellant to the ground, eventually putting her in handcuffs.

Appellant testified that M.V. continued to restrain her by holding onto her purse strap, even though he had inspected her purse twice. She asserted that he then grabbed her by the shoulder and "tried to slam" her to the ground. Appellant claimed that she bit M.V. to get away from him after he had slammed her to the ground.

The testimony of M.S. supported appellant's version of events, but a bystander and a Walgreens employee testified that M.V. did not touch appellant until she had bitten his finger. Both appellant and M.S. were handcuffed outside the store, and ...


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