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In re Welfare of A. J. B.

Court of Appeals of Minnesota

April 9, 2018

In the Matter of the Welfare of: A. J. B., Child

          Scott County District Court File No. 70-JV-16-8474

          John Arechigo, Arechigo & Stokka, P.A., (for appellant A.J.B.)

          Lori Swanson, Attorney General, and Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, (for respondent state of Minnesota)

          Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross, Judge.

         SYLLABUS

         Minn. Stat. §§ 609.749, subd. 2(6), and .795, subd. 1(3) (2014), are not unconstitutionally overbroad, either facially or as applied, in violation of the First Amendment to the United States Constitution or article I, section 3 of the Minnesota Constitution.

          OPINION

          WORKE, JUDGE.

         Appellant argues that his adjudications for stalking and harassment must be reversed because (1) Minn. Stat. §§ 609.749, subd. 2(6), and .795, subd. 1(3), are unconstitutionally overbroad both facially and as applied, and (2) the evidence was insufficient to prove his guilt beyond a reasonable doubt. We affirm.

         FACTS

         In March 2016, high school students, W.K., B.L., and appellant A.J.B., discussed that M.B., a fellow student who had been diagnosed with autism and ADHD, had recently posted some tweets discussing girls at school. B.L. and A.J.B. told W.K. that they wanted to post materials on M.B.'s Twitter page to elicit a "negative response." A.J.B. created a Twitter account with no identifying information called "Jeb Bush's Guac Bowl." A.J.B. then began tweeting messages tagging M.B.'s account over two to three hours, with several referring to autism. One post contained a sign saying "Autistic Children Play Here" with a caption reading "Meanwhile at [M.B.]'s Daycare." Another post contained a checkerboard of images with M.B.'s face and a caption reading "Click the Autistic Child." Another post encouraged M.B. to "try a new cologne called 'Anthrax.'" One post encouraged M.B. to "consider suicide, " while another contained an image stating "Consider the following" with a picture of a person holding a Clorox Bleach bottle. A.J.B. also posted an image of Pepe the Frog, "a known hate symbol, " hanging by the neck on a rope.

         Several days later, the tweets came to the attention of the high school's dean of students. She spoke to M.B. and asked if he had seen anything online that made him concerned. M.B. told her that he had not checked his Twitter account for several days. After the dean of students investigated and learned that W.K., B.L., and A.J.B. were involved, she spoke to A.J.B., who admitted to posting the tweets.

         Later that afternoon, when M.B. looked at the tweets, he immediately became upset and cried. M.B. testified that the tweets made him want to commit suicide and that he held a knife near his chest. M.B. decided not to commit suicide and called his mother. M.B. testified that when he returned to school, he was afraid that someone was going to attack him. M.B.'s mother took him to see a psychiatrist and a social worker because she was afraid that M.B. would try to hurt himself.

         A.J.B. was charged with gross-misdemeanor stalking and misdemeanor harassment. A.J.B. moved to dismiss, but the district court denied the motion, ruling that the stalking and harassment statutes were constitutional, both facially and as applied to A.J.B. The state later amended the juvenile petition, adding the charge of felony stalking because of disability.

         After a trial, the district court concluded that the state proved each count of the petition beyond a reasonable doubt. The district court adjudicated A.J.B. delinquent on the gross-misdemeanor stalking and misdemeanor harassment charges, but stayed adjudication on the felony stalking charge. This appeal followed.

         ISSUES

         I. Did the district court err by determining that the stalking and harassment statutes were not facially overbroad?

         II. Did the district court err by determining that the stalking and harassment statutes were not overbroad as applied to appellant's specific conduct?

         III. Did the district court fail to hold the state to its burden of proof?

         IV. Was the evidence sufficient to support the district court's finding of ...


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