author: GILBERTSON, Justice SABERS, Justice

text:
    2000 SD 75
    STATE of South Dakota, Plaintiff and Appellee, v. Rodney Troy HOLZER, Defendant and Appellant.
    No. 21103.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Decided June 7, 2000.

      Mark Barnett, Attorney General, Michele K. Bennett, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Nichole Carper, Minnehaha County Public Defender’s Office, Sioux Falls, for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Defendant Rodney Troy Holzer (Holzer) appeals his conviction of first-degree attempted burglary, claiming the evidence is insufficient to support the conviction. He also appeals the circuit court’s ruling admitting testimony concerning the condition of his clothing at the time of his arrest. We affirm.

FACTS AND PROCEDURE

[¶2.] On December 17, 1998, Amanda Spronk, Amy Decker and two other young college women lived together in a house in Sioux Falls, South Dakota. On this particular evening, four of Spronk’s girlfriends, Jessica DeVries, Jill Poppens, Sarah Rol-linger and Katie Koerner, were spending the night at her house because the University of Sioux Falls dormitories were closed for Christmas break.

[¶ 3.] After spending the evening at another Mend’s house, the women returned to Spronk’s house in two separate cars. The cars were parked on the street in front of the house. DeVries’ car was left unlocked. The front and back doors to the house were unlocked at this time because Decker expected her boyfriend to stop by later.

[¶ 4.] While downstairs on the main floor of the house, Poppens noticed someone opening the outside screen door on the front porch. Poppens and Koerner went to the front door to see if anyone was there, and observed Holzer running across the front lawn. They went upstairs to tell Spronk and DeVries what they had seen. At that point, Spronk went outside to lock DeVries’ car with the remote entry control. She came back into the house and locked both the front door and the back sliding glass door before heading back upstairs. The other women remained on the first floor.

[¶ 5.] A short time later, Poppens, Rol-linger and Koerner noticed Holzer attempting to again get into the house. They told Spronk about this and when she looked out the window she saw a man standing in the driveway. Holzer was “showing himself and he was dancing around.” In his brief, Holzer admits, while wearing a dildo and masturbating, he danced provocatively on the sidewalk in front of Spronk’s house. Poppens called 911 to report what was happening. The women felt sure Holzer knew they were watehing him. He “popped up” in front of the women and scared them while they were looking out the small windows of the front door. At this time the women could not identify the man because his face was covered. Holzer wore a blue t-shirt over his face. The shirt had holes cut out for his eyes and nose.

[¶ 6.] Holzer went to the back door and attempted to force open the sliding glass door, “slamming [it] back and forth real hard.” The force was sufficient to pull the screws from the latch “out of their original position approximately about a half inch.” There was also enough force exerted on the door to make the vertical blinds covering the glass swing back and forth. After the incident, the' back sliding glass door could not be locked until it was repaired.

[¶ 7.] At some point, Decker was awakened and told about the man trying to get into the house. She made another 911 call. The women remained upstairs and Decker stayed on the line until law enforcement arrived.

[¶8.] When Officer Dave Erickson arrived at the scene, he observed “a shadow of a person” near the back door of the house. A dog began barking at Officer Erickson, and Holzer ran off. Other law enforcement dispatched to the area observed Holzer running through the backyards in the neighborhood. Holzer did not stop upon command and was tackled a short distance from Spronk’s house. When Holzer was rolled over onto his back, officers noticed a large, flesh colored dildo attached with nylons to his waist, extending through the unzipped and unsnapped open fly' of his pants. Holzer’s pants were very wet in the crotch area, specifically, “around the pocket areas and up towards the snap.... ” The rest of his pants were dry. Spronk’s purse was found on the ground near Holzer. The blue t-shirt was found by him as well. Holzer’s 1975 Dodge pickup was found one block south from Spronk’s house.

[¶ 9.] On December 22, 1998, Holzer was charged by indictment with attempted burglary in the first-degree (the house) (SDCL 22-32-1(3); SDCL 22-4-1), with the intent to commit sexual contact without consent, attempted burglary in the fourth-degree (the car) (SDCL 22-32-19) and indecent exposure (SDCL 22-24-1). The State also filed a Part II Habitual Offender Information, as Holzer had twice previously been convicted of burglary in the third-degree and once for grand theft. The State dismissed the indecent exposure charge prior to trial. Also prior to trial, Holzer filed a motion in limine to restrict testimony regarding the fact Holzer’s pants were “wet” at the time of his arrest. This motion was denied and the circuit court allowed testimony regarding the condition of Holzer’s pants. On April 13, 1999, Holzer was convicted by a jury -on the counts of attempted burglary. The circuit court sentenced him to twenty-five years in the state penitentiary with three years suspended for the attempted first-degree burglary and ten years with one year suspended as to the count of attempted fourth-degree burglary. The sentences are to be served concurrently. Holzer now appeals his conviction and sentence for attempted first-degree burglary, raising the following issues for our consideration:

1. Whether the circuit court erred in denying Holzer’s motion for judgment of acquittal.
2. Whether the circuit court abused its discretion in admitting testimony concerning the condition of Holzer’s pants at the time of his arrest.

STANDARD OF REVIEW

[¶ 10.] In reviewing the denial of a motion for judgment of acquittal, the ultimate question is whether the evidence was sufficient to sustain the convictions. State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d 15, 17. We recently stated in Larson:

Our standard of review of a denial of a motion for' judgment of acquittal is whether State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged. State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994); State v. Gallipo, 460 N.W.2d 739, 742 (S.D.1990). In determining the sufficiency of the evidence to constitute the crime, the question is “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt; in making this determination, the court will accept the evidence, and the most favorable inference fairly drawn therefrom, which will support the verdict.” State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted).

Id. (citing State v. Thompson, 1997 SD 15, ¶ 34, 560 N.W.2d 535, 542-43 (citing State v. McGill, 536 N.W.2d 89, 91-92 (S.D.1995))). In this review, we “will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence. No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.” State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905 (citing State v. Knecht, 1997 SD 53, ¶22, 563 N.W.2d 413, 421).

[¶ 11.] The circuit court’s eviden-tiary rulings are presumed correct and we review them under an abuse of discretion standard. Larson, 1998 SD 80, ¶ 10, 582 N.W.2d at 17 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129 (citing State v. Oster, 495 N.W.2d 305, 309 (S.D.1993))). “The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” Id. (citing Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d at 129 (citing State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986))).

ANALYSIS AND DECISION

[¶ 12.] 1. Whether the circuit court erred in denying Holzer’s motion for judgment of acquittal.

[¶ 13.] Holzer argues his motion for judgment of acquittal should have been granted at the close of the evidence because the evidence was not sufficient to prove beyond a reasonable doubt he intended to commit, sexual contact in the course of the attempted burglary. We do not agree.

[¶ 14.] Burglary is an unlawful entry accompanied by an intent to commit some other crime in the process; in this case, the crime was sexual contact. SDCL 22-32-1. Holzer was apprehended before he actually entered the house and committed a crime therein. SDCL' 22-4-1. The State had to prove beyond a reasonable doubt Holzer intended to commit sexual contact on one or more of the women in Spronk’s home. The jury determined Holzer was guilty of attempted burglary with the intent to commit sexual contact.

[¶ 15.] The State may prove all elements of a crime, including intent, by circumstantial evidence. State v. McGill, 536 N.W.2d 89, 94 (S.D.1995) (citing State v. Davi, 504 N.W.2d 844, 856-57 (S.D.1993); State v. Ashker, 412 N.W.2d 97, 105 (S.D.1987)). “The actor’s ‘state of mind’ at the time of the offense may also be determined from his acts, conduct and inferences which are fairly deducible from the circumstances surrounding the offense.” Id. (citing State v. Huber, 356 N.W.2d 468, 473 (S.D.1984)); see also State v. Ring, 554 N.W.2d 758, 760 (Minn.App.1997) (stating intent must generally be proved from the circumstances surrounding the defendant’s acts). “[T]he proof of intent to commit a crime in connection with proof of burglary is always one that must rest on a permissible inference from the fact proved.” Ring, 554 N.W.2d at 760.

[¶ 16.] Rarely does a sexual perpetrator announce his intentions prior to attempting such a crime. People in Interest of W.Y.B., 515 N.W.2d 453, 455 (S.D.1994). In W.Y.B. this Court analyzed the concept of proof of specific intent concerning the crime of sexual contact, SDCL 22-22-7.1:

First, we note that circumstantial evidence may often be the only way to prove intent. North Dakota v. Lovejoy, 464 N.W,2d 386, 389 (N.D.1990) (citing North Dakota v. Huwe, 413 N.W.2d 350, 355 (N.D.1987)). See Nebraska v. Morrow, 237 Neb. 653, 467 N.W.2d 63, 71 (1991) (“[I]ndependent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred ■from the words and acts of the defendant and from the circumstances surrounding the incident.”) (quoting Nebraska v. Costanzo, 227 Neb. 616, 419 N.W.2d 156, 162 (1988)); Minnesota v. Obasi, 427 N.W.2d 736, 738 (Minn.App.1988) (“Intent is a subjective state of mind and is established by reasonable inferences drawn from surrounding circumstances.”)
(citation omitted); Bustamante v. Indiana, 557 N.E.2d 1313, 1317-18 (Ind. 1990) (stating that elements of offenses may be established entirely by circumstantial evidence and logical inferences drawn therefrom); Phillips v. Texas, 597 S.W.2d 929, 936 (Tex.Crim.App.1980) (“One’s acts are generally reliable circumstantial evidence of his intent.”) (citation omitted). Because the nature of intent is such that it is “rarely susceptible to direct proof, the fact finder may determine intent by su'ch reasonable inferences and deductions as may be drawn from facts proved by evidence in accordance with common experience and observation.” Iowa v. Hilpipre, 395 N.W.2d 899, 903 (Iowa App.1986) (citing Iowa v. Serr, 322 N.W.2d 96, 101 (Iowa App.1982)). On review, this court need only determine whether such inferences regarding intent support the judgment of the court beyond a reasonable doubt. Bustamante, 557 N.E.2d at 1318; Lovejoy, 464 N.W.2d at 389.

Also, the jury, as the exclusive judge of facts, credibility of the witnesses, and the weight to be given the evidence, may “infer knowledge and intent from the acts, words, and conduct of the accused.” Harvey v. State, 3 S.W.3d 170, 174 (Tex. App.14th Dist. — Houston 1999) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982)).

[¶ 17.] Given the facts and circumstances of this case, we determine there was sufficient evidence for the jury to find Holzer guilty of attempted burglary. Hol-zer admits he was at Spronk’s house on the night in question. He admits he opened the front screen door, and forced the back sliding glass door hard enough to pull the latch and lock screws out of place, and rattle the vertical blinds. He also admits, while wearing a dildo attached to his waist and his pants unzipped and unsnapped, and masturbating, he danced provocatively on the sidewalk in front of the house. Holzer approached the front door and “popped up” in front of the small windows, scaring the women inside the house. He also took Spronk’s purse from the car parked in front of the house. If his purpose was to steal the purse for monetary gain, he logically would have fled the crime scene with his proceeds. As he remained, a reasonable inference drawn from the theft of the purse is that Holzer wanted to obtain keys to enter the house. If his intent was to continue his thefts in the house, a house full of college girls provided questionable financial potential compared with some of the other homes in Sioux Falls. The fact it was obviously occupied also greatly increased his chances of being identified, and thus caught. However, his state of mind was such that upon failing to find house keys in the purse he continued to attempt to enter the occupied structure oblivious to the fact he was giving the occupants more than sufficient time to summon law enforcement. He did Pot attempt to flee until the police actually arrived and he was aware of their presence.

[¶ 18.] Holzer wore a blue t-shirt, with holes cut out for the eyes and nose, to cover his identity. He ran from the police when told to stop. Finally, when the police did apprehend him, the front of his pants were “wet” around the pocket and zipper area, supporting a legitimate inference that the wetness was caused by semen, indicating Holzer’s intent in entering the house was for further sexual gratification.

[¶ 19.] Holzer essentially argues that his conduct in attempting to enter the house was harmless. However, if Holzer’s intent was merely to expose himself to those six women that night, after he Rad already accomplished this act outside the house why did he make so many strenuous and violent attempts to enter the house? He clearly had a desire to get inside the house based upon the repeated amount of force he exerted to pry open the back sliding glass door. He frightened the women sufficiently that they called 911 two times, and when officers arrived on the scene, they were “crying, hysterical, [and] very obviously shaken up and upset about the incident that occurred.” The tape of the womens’ 911 call illustrates not only how frightened these young women were, but also shows Holzer’s repeated, persistent attempts to gain entry into the house, stopped only by police officers arriving on the scene.

[¶ 20.] Holzer’s intent to commit sexual contact on these facts is not speculative or tenuous, but is a legitimate inference based upon all the facts available to the jury. Compare, State v. Halverson, 394 N.W.2d 886 (S.D.1986) (ruling that evidence was too tenuous to support a verdict beyond a reasonable doubt that the defendant intended to commit an assault in attempting to enter a residence). The jury had more than sufficient evidence from which it could reasonably find Holzer guilty of the crime charged. The jury, as fact finders, heard all the evidence and determined the credibility of the witnesses and weighed their testimony. “It is not the proper function of this [C]ourt to resolve evidentiary conflicts to determine the credibility of witnesses or weigh the evidence.” State v. Christensen, 1998 SD 75, ¶ 37, 582 N.W.2d 675, 682 (citing State v. Abdo, 518 N.W.2d 223, 227 (S.D.1994)) (quoting State v. Battest, 295 N.W.2d 739, 742 (S.D.1980)). The weight of the evidence is for the jury to evaluate. Id. (citing State v. Ristau, 290 N.W.2d 487, 490 (S.D.1980)). Moreover, the jury was given an instruction that the State must prove as an element of attempted first degree burglary, Holzer had the specific intent to commit the crime of sexual contact. The jury was also instructed on the difference between direct and circumstantial evidence. Jury instruction 9 states in relevant part:

Where the case of the state rests substantially or entirely on circumstantial evidence, you are not permitted to find the defendant guilty of the crime charged unless the proved circumstances are not only consistent with the guilt of the defendant, but cannot be reconciled with any other rational conclusion and. each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt has been proved beyond a reasonable doubt.
If all the facts and circumstances shown can be reasonably accounted for upon any theory consistent with the innocence of the defendant, the jury must acquit the defendant.

We assume the jury followed these instructions. West v. United States, 359 F.2d 50, 53 (8th Cir.1966) (citing Beck v. United States, 298 F.2d 622 (9th Cir.1962)); see also United States v. Stone, 9 F.3d 934, 938 (11th Cir.1993) (quoting Marshall v. Lonberger, 459 U.S. 422, 438 n. 6,103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646 n. 6 (1983) (“The “ ‘crucial assumption’ underlying the system of trial by jury ‘is that juries will follow the instructions given them by the trial judge.” ’ ”)). We can also assume the “jury possessed ordinary intelligence and ordinary ability to interpret the facts and understand the instructions.” West, 359 F.2d at 54 (citing Orton v. United States, 221 F.2d 632 (4th Cir.1955)).

[¶ 21.] Considering all reasonable inferences and the record' in a light most favorable to the jury’s verdict, we determine the evidence was sufficient to constitute attempted burglary in the first-degree. State v. Rhines, 1996 SD 55, ¶ 157, 548 N.W.2d 415, 451 (citing State v. Butter, 484 N.W.2d 883, 889 (S.D.1992), cert. denied, 506 U.S. 887, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992)) (citing Ashker, 412 N.W.2d at 105). This Court also views the facts in a light most favorable to the State, giving the State the benefit of all reasonable inferences. Halverson, 394 N.W.2d at 888. The circumstances shown - persistent attempts to make a forced entry after Holzer had exposed himself and masturbated in the front yard, while concealing his identity - exclude any rational inference that Holzer had a noncriminal and non-sexual intent in attempting entry into the house. The trial court properly denied Holzer’s motion for acquittal.

[¶ 22.] Affirmed.

[¶ 23.] 2. Whether the circuit court abused its discretion in admitting testimony concerning the condition of Holzer’s pants at the time of his arrest.

[¶ 24.] Holzer made a pretrial motion in limine, requesting the circuit court to prevent the State from making any reference to the condition of his pants at the time of arrest. Holzer’s basis for this motion was that the pants had not been taken into evidence or tested in any way to support a suggestion by the State that the pants were wet because of semen. The court determined the matter would be dealt with when it came up at trial.

[¶ 25.] At trial, Holzer renewed his motion, arguing the pants had never been preserved as evidence and not tested. Finally, Holzer argued the prejudicial impact of Officer Webb’s testimony concerning the pants outweighed any probative value it might have. The circuit court heard the officer’s testimony outside the presence of the jury, and denied Holzer’s motion.

[If 26.] Officer Webb testified at trial about the wetness he observed on Holzer’s pants when he tackled him to the ground, after Holzer ignored his command to stop. The following testimony constitutes the entire direct testimony regarding Holzer’s “wet” pants:

Q: Did you notice anything else unusual about the defendant?
A: His pants were unzipped and unsnapped.
Q: Anything else unusual about the defendant?
A: The pants around the groin area were also wet.
Q: Was there frost on the ground that night?
A: Yes, there was.
Q: Did the wetness around his crotch area appear to you to be caused by the frost on the grass?
A: No, it didn’t. They were extremely wet to the touch.
Q: Were the rest of his jeans or pants wet?
A: Not that I recall. I recall around the pocket areas and up towards the snap that were extremely wet.

It is apparent from the above testimony that the State never asked Officer Webb’s opinion of why Holzer’s pants were wet. We will never know what the jury may have inferred from Holzer’s wet pants, but if it did infer the wetness was caused by Holzer’s semen, it would be a legitimate inference drawn from the evidence. Again, the jury determines the facts and weight of the evidence.' Christensen, 1998 SD 75, ¶ 37, 582 N.W.2d at 682.

[¶ 27.] Relevant evidence is evidence having any tendency to make the existence of any material fact more or less probable. SDCL 19-12-1. Relevant evidence is inadmissible if unfairly prejudicial. SDCL 19-12-3. The circuit court did the required balancing on the record as to this evidence and found it more probative than prejudicial. Knecht, 1997 SD 53, ¶ 12, 563 N.W.2d at 419 (citing State v. McDonald, 500 N.W.2d 243, 246 (S.D.1993)). The standard is not whether the evidence was prejudicial but whether it was unfairly prejudicial. Id. “Unfair prejudice means evidence that has the capacity to persuade by illegitimate means.” Id. (citing State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D.1990)) (citing State v. Holland, 346 N.W.2d 302 (S.D.1984)). We do not find any unfair prejudice to Holzer in this case, as the testimony presented to the jury was clearly limited to what Officer Webb observed when he arrested Holzer, and nothing more. ■

[¶ 28.] Moreover, the State had the burden to prove Holzer possessed the intent to commit sexual contact upon entry to the house. The location and degree of wetness of Holzer’s pants is a relevant fact to his intent to “arouse or gratify his sexual desire.” SDCL 22-22-7.1. While the “wetness” of the pants alone does not establish Holzer’s criminal intent, it is circumstantial evidence that supports that intent.

[¶ 29.] Finally, Holzer had every opportunity to cross-examine Officer Webb on the .witness stand, before the jury, to suggest possible explanations for the wetness. In fact, while cross-examining Officer Webb, Holzer’s counsel suggested that the wetness on his pants could have been caused by frost on the ground:

Q: You have him on the ground. He’s face down in the backyard of a place where there’s frost on the ground?
A: Yes.
Q: You have your , knee on his buttocks area to keep him secure on the ground; is that correct?
⅜ ⅞; :¡< ⅜
Q: It’s your testimony in the whole process from him running away from when you tackled him to the ground and I assume sliding, the only part of his pants that were wet was the pocket area?

A: Not noticeably wet; that’s correct. • Holzer’s counsel also brought out the fact that the pants had not been tested in any way to determine the cause of the wetness. Thus, the jury was able to hear all of this testimony, yet still found Holzer guilty of attempted burglary. The probative value of this evidence put on by the State to prove, beyond a reasonable doubt, that Holzer did have intent to commit sexual contact upon entering the Spronk house was not outweighed by any unfair prejudice to Holzer. This is true especially considering the victims’ testimony describing Holzer’s actions, and the fact that Hol-zer did not offer any Contradicting testimony. Holzer has failed to show an abuse of discretion by the circuit court.

[¶ 30.] Affirmed.

[¶ 31.] MILLER, Chief Justice and KONENKAMP, Justice, concur.

[¶ 32.] SABERS and AMUNDSON, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 33.] The majority opinion strains in Issue 1 to conclude that the only legitimate inference is that Holzer intended to commit sexual contact on one or more of the women in Spronk’s home. Nonsense. This weirdo is so weird any speculation about his unknown intent is just that, pure speculation. The evidence presented at trial was “too tenuous to support a verdict beyond a reasonable doubt” that Holzer, who was attempting to enter the Spronk residence, intended to commit sexual contact without consent once inside the home. State v. Halverson, 394 N.W.2d 886 (S.D. 1986).

[¶ 34.] The- majority opinion unsuccessfully attempts to distinguish the Halverson ease from this case. While these two cases are not factually identical, the issues are certainly similar. Halverson attempted to enter the home of two women at night by prying and tearing on a bedroom screen window. He admitted that he was a “window-peeper” and tampered with the screen to improve visibility, but did not intend to gain entry into the trailer house. Halverson was convicted of attempted burglary with the intent to commit assault therein. In reversing this conviction, this court stated:

The determination of the sufficiency of the evidence to submit a case to the fact finder ‘may depend upon the difference between pure speculation and legitimate inference from proven facts.’

Id. at 888 (citations omitted).

[¶ 35.] We explained that while the evidence clearly showed that. Halverson attempted to enter the home in the nighttime, “the evidence is purely speculative on whether defendant’s intent in attempting to do so was to commit an assault....” Id. In reversing, we rejected the State’s argument that Halverson would have “most likely” committed assault: “[t]his evidence, while it might permit conjecture and speculation as to what was ‘most likely’ to occur, is too tenuous to support a verdict beyond a reasonable doubt that [Halverson] intended to commit an assault in attempting to enter the trailer.” Id. Therefore, we held that the evidence was not “sufficiently compelling or persuasive to support a finding beyond a reasonable doubt that defendant intended to commit an assault in the course of the attempted break-in.” Id.

[¶ 36.] Similarly, Holzer attempted to break-in to the Spronk residence during the nighttime by forcibly pulling on the sliding glass door. Like the Halverson case, this is the only legitimate inference that can be made. However, the majority opinion strains to persuade that the only legitimate inference is that Holzer intended to commit sexual contact on one or more of the women in Spronk’s home. For example, the majority opinion claims:

If his purpose was to steal the purse for monetary gain, he logically would have fled the crime scene with his proceeds. As he remained, a reasonable inference drawn from the theft of the purse is that Holzer wanted to obtain keys to enter the house. If his intent was to continue his thefts in the house, a house full of college girls provided questionable financial potential compared with some of the other homes in Sioux Falls....
Holzer wore a blue t-shirt, with holes cut out for the eyes and nose, to cover his identity. He ran from the police when told to stop. Finally, when the police did apprehend him, the front of his pants were ‘wet’ around the pocket and zipper area, supporting a legitimate inference that the wetness was caused by semen, indicating Holzer’s intent in entering the house was for further sexual gratification.

(emphasis added).

[¶ 37.] It is obvious that the majority opinion incorrectly stacks inference upon inference to conclude that specific intent was established. See State v. Burton, 235 Kan. 472, 681 P.2d 646, 651-52 (1984) (stating that “presumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference.” (citations omitted)). Setting aside the incorrect stacking of inferences, the inferences themselves could only have arisen if the jury, or majority opinion, engaged in conjecture and speculation. We have previously determined that regardless whether the evidence is direct or circumstantial, it must raise a legitimate inference of guilt. In other words, it must do more than create conjecture, speculation or suspicion.

[¶ 38.] Holzer’s conduct does not provide substantial evidence to support his conviction for attempted burglary with the intent to commit sexual contact. It is pure speculation to conclude that Holzer was satisfied by the minimal amount he took from the purse. It is also pure speculation to conclude that the college girls had nothing of value to steal from their home merely because they were college girls. Furthermore, the fact that he stole a purse does not give rise to a legitimate inference that he wanted to commit sexual contact without consent. It is also pure speculation to conclude that Holzer had the intent to commit sexual contact once inside the Spronk home. After all, did he not sexually gratify himself before the police arrived? If the prior purse stealing excludes intent to steal, why does not his prior ejaculation exclude intent to commit sexual contact? The attempt at logic in the majority opinion defies logic.

[¶ 39.] Additionally, Holzer did not have any weapons in his possession that night. He was attempting to enter a home where six college girls were temporarily living. Is it reasonable to infer that six college women could not protect themselves against Holzer, who was unarmed. Furthermore, if he intended to commit sexual contact, why did he not approach,- touch or grab Spronk when she left the security of the house to lock her friend’s car? Nobody knows - it is pure speculation.

[¶ 40.] While reasonable inferences may be drawn' from the facts and conditions shown, they cannot be drawn from facts and conditions “merely imagined or assumed.” Burton, 681 P.2d at 652 (citation omitted). The foundation for this conviction is an incorrect stacking of inferences and assumptions. Furthermore, the circumstantial evidence reveals that “it is just as likely, if not more likely” that a reasonable hypothesis of unknown intent best explains Holzer’s weird conduct. Therefore, the evidence cannot be said to rise to the level of proof beyond a reasonable doubt..

[¶ 41.] In summary, three things are clear:

1) There simply is no evidence that this weirdo intended physical contact with anyone;
2) The evidence is that he was into theft, scare or shock tactics and not physical contact; and
3) He was charged with a specific intent crime, not a.general intent crime, and the State did not prove either.

All the State proved as to intent is pure speculation and, unless we overrule Halverson, that is not enough.

[¶ 42.] The State’s evidence of Holzer’s specific intent at the time of entry “required the jury ‘to cross the bounds of permissible inference and enter the forbidden , territory of conjecture and speculation’ and therefore was insufficient as a matter of law to convict [Holzer] of the burglary charge.” Johnson v. United States, 613 A.2d 888, 906 (D.C.Ct.App.1992) (citations omitted). Therefore, the trial court abused its discretion in failing to grant Holzer’s motion for Judgment of Acquittal on the basis of insufficient evidence and his conviction should be reversed.

[¶ 43.] AMUNDSON, Justice, joins this dissent.

      . The totcil elapsed duration of the two 911 calls is 8 minutes and 26 seconds. The record does not indicate how much time elapsed between the first and second 911 calls.

      .SDCL 22-32-1 provides:
      Any person who enters an occupied structure, with intent to commit any crime other than the act of shoplifting or retail theft as described in chapter 22-3 0A constituting a misdemeanor, or remains in an occupied structure after forming the intent to commit any crime other than shoplifting or retail theft as described in chapter 22-3 0A constituting a misdemeanor, is guilty of first degree burglary when:
      (1) The offender inflicts, or attempts or threatens to inflict physical harm on another;
      (2) The offender is armed with a dangerous weapon; or
      (3) The offense is committed in the nighttime.
      First degree burglary is a Class 2 felony.

      . SDCL 22-4-1 states, in pertinent part:
      Any person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable where no provision is made by law for the punishment of such attempt, ....

      . SDCL 22-22-7.1 states in part:
      As used in this chapter, the term, sexual contact, means any touching, not amounting to rape, of the breasts of a female or the genitalia or anus of any person with the intent to arose or gratify the sexual desire of either party[.]

      . Holzer’s reliance upon Halverson is misplaced as authority for his argument that there was insufficient evidence to support a jury determination that Holzer entered the house with the intent to commit sexual contact. The two cases are factually distinguishable.’ While evidence was introduced of previous episodes between Halverson and other women, the sole facts underlying a claim of attempted burglary by attempted entry into a home for purposes of committing an assault on a woman were as follows:
      Sometime during the night on August 14, 1984 a young woman was awakened by someone prying and tearing on the bedroom screen window of the trailer home she occupied with another woman in Vermillion, South Dakota. The first woman was asleep in the darkened bedroom of the trailer. As she was awakened, she heard someone jump off a cement block that was under the window. The prowler then ran away. The women's trailer home was two trailer houses away from defendant’s. Defendant was identified as a suspect by his fingerprints which were lifted off the window frame.

        Halverson, 394 N.W.2d at 886-87. The repeated violent, strenuous attempts to gain entry to the house that occurred in this case were not present in Halverson. Likewise the acts committed by Halverson surrounding the unsuccessful attempted entry do not contain the repeated sexual acts which are admitted by Holzer.

      . Twelve jurors were empanelled .to try this case. After hearing and considering all the evidence and the reasonable inferences drawn therefrom and being properly instructed on the law, not one of them concluded there was a reasonable doubt of the defendant’s specific intentions or guilt. The dissent fails to give the jury its time honored deference as the "exclusive” trier of fact, pursuant to SDCL 23A-25-3, who had the opportunity to see and hear the proceedings and instead the dissent engages in a selective de novo review of the case. See Harvey, 3 S.W.3d at 173 (stating "[t]he jury is the exclusive judge of the facts, credibility of the witnesses, and the weight to be given to the evidence.”). A de novo standard of review is inappropriate in this case, because a court in a sufficiency of the evidence case is "required to review all inferences in favor of the [jury] verdict, thus making deferential review appropriate,” instead of a de novo review which applies only to decisions made by the trial court. State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163, 174 n. 5 (1995) (interpreting Jackson v. Virginia, 443 U.S. 307, 324-26, 99 S.Ct. 2781, 2792-93, 61 L.Ed.2d 560, 577-78 (1979).)
      By engaging in its subjective review of the facts and evidence in this case, the dissent is acting as a "thirteenth juror” when it reaches its conclusion that Holzer, a "weirdo, is so weird any speculation about his unknown intent is just that, pure speculation.” Concluding that the defendant is a "weirdo” is not the point of a criminal trial, nor is it a legal defense to set aside the jury's determination of guilt. "[Cjourts ‘are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different •result is more reasonable.’” Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We agree with the Guthrie court's statement in interpreting the United States Supreme Court’s decision in Jackson as establishing a deferential standard of review in cases where the sufficiency of the evidence to support a jury verdict is challenged:
      Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
      461 S.E.2d at 174; see also Harvey, 3 S.W.3d at 174 (stating "[a] factual sufficiency review must be appropriately deferential so as to avoid the appellate court’s substituting its own judgment for that of the fact finder.”); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 295 (Tex.App.—Waco 1997) (concluding "the court on appeal is not to retry the case or otherwise substitute its judgment or opinion for that of the trier of fact and that only when the judgment is clearly wrong and unjust, after giving due deference to the jury’s determinations of the facts, may the reviewing court reverse the judgment.”) (emphasis added).

      . Ten days after this incident, Halverson was again observed window peeking and attempting to break into the apartment of three other women. He- was found guilty of window peeking for this offense. Id. at 887.

      . The majority opinion’s claim about the thirteenth juror is nonsense. We are only suggesting that this court do exactly what this court did in Halverson. That is, determine that the evidence was more speculation than sufficient and reverse and remand. The simple fact is that the State overcharged the defendant considering the evidence they were able to produce. See Halverson, 394 N.W.2d at 888 (stating that "[t]he determination of the sufficiency of the evidence ... 'may depend upon the difference between pure speculation and legitimate inference from proven facts.’ ”).

      . But for this speculation requiring reversal, I would agree with the majority opinion's determination in Issue 2 that the trial court did not abuse its discretion in allowing the' State to refer to the fact that Holzer’s pants were wet in the zipper area at the lime of his arrest.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF SIOUX CITY, Iowa, a Municipal Corporation, Appellant, v. Siouxland Engineering Associates, P.C., Defendant, And Concerning Raymond L. FREESE, Appellee.
    No. 98-2193.
    Supreme Court of Iowa.
    June 1, 2000.
    James L. Abshier, City Attorney, Sioux City, for appellant.
    John S. Rusch and Bryan J. Arneson of Bikakis, Arneson & Karpuk, Sioux City, for appellee.
   PER CURIAM.

Plaintiff, City of Sioux City, appeals an order denying the parties’ right to set off adverse judgments. The judgment of the district court is reversed, and the case is remanded for further proceedings.

I. Background Facts and Proceedings

In June of 1992, Siouxland Engineering Associates (SEA) began to design, and supervise construction on, a reservoir for the City of Sioux City. Upon completion, it was discovered the ground had settled and additional repairs would be required to prevent the structure from leaking. A settlement was reached in August of 1995 whereby SEA agreed to contribute $65,000 toward the cost of repair. To ensure satisfaction of this debt the City proposed it be allowed to withhold one-third of the payments due SEA on all future and outstanding contracts awarded. SEA’s response to the City’s overture is uncertain. Regardless, payment was never tendered and the City filed suit for $62,116. SEA counterclaimed, maintaining it had not been compensated for engineering services allegedly provided the City on other, unrelated projects.

Prior to trial both parties stipulated to set off any monetary obligations imposed by the court, and asked that a single judgment be entered for the record. It was later determined SEA was indebted to the City in the amount of $62,139, and that the City was in arrears to SEA for $42,804.72. Contrary to the parties’ intent, separate judgments were rendered on September 22, 1998.

In a concurrent action plaintiff, Raymond Freese, obtained a confession of judgment from SEA for $51,378.79. . On September 24, Freese served a garnishment on the City -targeting SEA’s $42,804.72 judgment. A notice of docket levy was also filed pursuant to Iowa Code section 626.22 (1997).

SEA and the City took steps to oppose Freese, and again moved for a setoff of the September 22 judgments. The trial court entertained the motion without having been apprised of Freese’s garnishmént. The motion by SEA and the City was approved, and, on October 5, the original order was modified to reflect a judgment on behalf of the City in the amount of $19,334.28. Upon learning of these events, Freese filed a motion to reconsider the modification. All hearings with respect to judgment, garnishment, and levy were thereafter consolidated.

On November 4, the court issued a ruling in which it expressed its displeasure with SEA and the City, and their apparent disregard for the ideals of notice and fairness. The court then observed that setoff is a remedial process that must be justified in equity. It held that neither SEA nor the City- established equitable grounds upon which a prayer for setoff could be sustained, and that the modification of the September 22 judgments was in error. The original, separate judgments were reinstated and the City appealed.

II. ■ Discussion

The City claims the trial court erred by refusing setoff in accordance with Iowa Rule of Civil Procedure 225. Iowa Rule of Civil Procedure 225 provides in pertinent part:

A claim and counterclaim shall not be set off against each other, except by agreement of both parties or unless required by statute. The court, on motion, may order that both parties make payment into court for distribution, if it finds that the obligation of either party is likely to be uncollectable....

Courts in Iowa previously were required to set off adverse judgments. See Peterson v. First Nat’l Bank, 423 N.W.2d 889, 891 (Iowa App.1988); Iowa R.Civ.P. 225 (1983). In 1984,. however, the rule was amended to prohibit imposition of setoff, except by agreement of both parties, or unless specifically required by statute. Iowa R.Civ.P. 225. At issue in this case is whether setoff ⅛ mandatory when the parties agree, or whether it is discretionary with the court.

The trial court adopted the latter position in.assuming a joint motion for setoff simply allowed it to consider the request under equitable principles. The court further commented that a petition unsupport- . ed by equitable consideration would not be granted. It then proceeded to engage in a balancing of the equities, whereupon it was determined Freese was an interested party, that SEA and the City failed to provide him notice, and that SEA and the City disregarded their duty to- inform the court of events which may have had a bearing on its decision. The court also found that no affirmative justification had been proffered for imposing setoff, and that doing so would prejudice Freese’s claim.

In arriving at its conclusions the trial court relied on Barnhouse v. Hawkeye State Bank, 406 N.W.2d 181 (Iowa 1987), wherein we remarked:

Set-off is a remedial process by which a court, upon petition of one party, reduces or cancels the claim of an adverse party. Among the grounds of independent equity jurisdiction for allowing set-off are special circumstances, including insolvency, that render it probable that a party will lose his or her demand and be compelled to pay the demand of the other.

Barnhouse, 406 N.W.2d at 188 (citing 20 Am.Jur.2d Counterclaim, Recoupment and Setoff § 26, at 247-48 (1965)).

The district court reads Bamhouse too broadly. Although not readily apparent at first blush, the passage quoted was dicta discussing the common law origins of set-off. In the preceding paragraph we explained that Iowa Rule of Civil Procedure 225 “grew out of our adoption of comparative negligence law,” and that it “incorporates some of the above rationale.” Barnhouse, 406 N.W.2d at 188.

Setoff is traditionally an equitable doctrine that lies within the province of the court. See 20 Am.Jur.2d Counterclaim, Recoupment, and Setoff § 6, at 232-33 (1995). In Iowa, however, we have chosen to regulate the right to setoff through the rules of civil procedure. See Iowa R.Civ.P. 225. Such rules have the force and effect of law. Fisher v. Davis, 601 N.W.2d 54, 60 (Iowa 1999). “Consequently, we interpret rules in the same manner we interpret statutes.” Id. Thus our review is for the correction of errors at law. Id.; see also State v. Randle, 603 N.W.2d 91, 92 (Iowa 1999); State v. Rains, 574 N.W.2d 904, 909 (Iowa 1998) (district court construction of the rules of criminal procedure reviewed for correction of errors at law).

To that end we focus on the language of the rule itself. Top of Iowa Coop. v. Sime Farms Inc., 608 N.W.2d 454 (Iowa 2000). Iowa Rule of Civil Procedure 225 provides that “a claim and counterclaim shall not be set off against each other, except by agreement of both parties or unless required by statute.” Iowa R.Civ.P. 225 (emphasis added). Our reading of the rule leads us to conclude setoff is mandatory when both parties to an action agree to it. This effectively removes from the court'any discretion it may previously have had.

We believe.this construction reflects an intent to minimize the demands made upon judicial resources by eliminating the need to balance equities when the parties to a suit-are both in accord. The decision of the trial court is reversed and the matter is remanded with instructions to set off the judgments against each other.

REVERSED AND REMANDED.

All justices concur except CADY, J., who takes no part.


text:
    REGIONAL RETIREMENT LIVING, INC. dba Sylvan Woods, Appellant, v. The BOARD OF REVIEW OF WAPELLO COUNTY, Iowa, Wapello County Assessor, Wapello County Iowa, Wapello County Treasurer, and Wapello County Auditor, Appellees.
    No. 98-1839.
    Supreme Court of Iowa.
    June 1, 2000.

      David J. Dutton and' Lynn M. Smith, Dutton,' Braun, Staack & Heilman, P.L.C., Waterloo, for appellant.
    Victoria R. Siegel, Wapello County Attorney, for appellees.
   PER CURIAM.

Plaintiff, Regional Retirement Living, Inc. (Sylvan Woods), sought tax relief through the judiciary. Plaintiffs petition was dismissed for failure to exhaust all administrative remedies. We affirm the decision of the district court.

I. Background Facts and Proceedings

Plaintiff, Sylvan Woods, filed for a property tax exemption based on its contention it was a nonprofit corporation devoted exclusively to charitable, religious, educational, and scientific endeavors under’ Iowa Code section 427.1(8) (1997). Sylvan Woods’ claim was timely filed on June 30, 1998 in accordance with Iowa Code section 427.1(14). On July 27 of that year, Sylvan Woods’ application was denied by the Wa-pello County Assessor’s Office. Sylvan Woods lodged an appeal with the district court, which was subsequently dismissed on the ground plaintiff failed to exhaust its administrative remedies, thereby relieving the district court of the authority to hear the matter.

Plaintiff appeals, asserting the administrative procedures in question were inapplicable, and that compliance was unrealistic.

II. Scope of Review

A plaintiffs failure to exhaust an administrative remedy deprives the district court of authority to rule on the case. State v. Clark, 608 N.W.2d 5, 7 (Iowa 2000); Shors v. Johnson, 581 N.W.2d 648, 650 (Iowa 1998). Questions of jurisdiction, venue, and authority of the district court are legal issues reviewed for correction of errors at law. Clark, 608 N.W.2d at 7; Shors, 581 N.W.2d at 650.

III. Discussion

Upon fulfillment of specific criteria, Iowa Code section 427.1(8) exempts from taxation property owned by religious, literary, and charitable organizations. See Iowa Code § 427.1(8). To avail themselves of this exemption, organizations

shall file with the assessor not later than July 1 a statement upon forms to be prescribed by the director of revenue and finance, describing the nature of the property upon which the exemption is claimed and setting out in detail any uses and income from the property derived from rentals, leases, or other uses of the property not solely for the appropriate objects of the society or organization. .

Id. § 427.1(14).

Plaintiff complied with these require-hients and was denied an exemption. At issue is whether Sylvan Woods’ appeal of that decision was appropriately filed with the district court; or whether its failure to exhaust other administrative remedies precluded the court from hearing the matter.

It is well established that a party must exhaust any available administrative remedy before seeking relief in the courts. Shors, 581 N.W.2d at 650. This doctrine appliés when (1) an adequate administrative remedy exists, and (2) the governing statute requires the remedy to be exhausted before allowing judicial review. Id.

Iowa Code section 441.37 provides:

1. Any property owner or aggrieved taxpayer who is dissatisfied with the owner’s or taxpayer’s assessment may file a protest against such assessment with the board of review on or after April 16, to and including May 5, of the year of the assessment.... Said protest must be confined to one or more of the following grounds:
c. That the property is not assessable, is exempt from taxes, or is misclassified and stating the reasons for the protest.

This statute is directly applicable to claims of the nature advanced by plaintiff. See City of Council Bluffs v. Pottawattamie County, 254 N.W.2d 18, 20 (Iowa 1977) [hereinafter Pottawattamie] (city seeking exemption of property from the tax rolls must appeal to review board). The board of review was created by the legislature for the express purpose of addressing complaints regarding the classification and assessment of property. Griswold Land & Credit Co. v. Calhoun County, 198 Iowa 1240, 1242, 201 N.W. 11, 12 (1924). Such complaints must be heard by the board before judicial relief may be had. Pottawattamie, 254 N.W.2d at 20. Its jurisdiction in these matters is exclusive of all other remedies allowed by law. Griswold, 198 Iowa at 1242, 201 N.W. at 12.

The difficulty with which we are confronted lies in the apparent discrepancy between sections 441.37 and 427.1(14). Under the latter statute, organizations have until July 1 to petition the county for an exemption. Iowa Code § 427.1(14). Appeals, however, must be submitted by May 5. Id. § 441.37. Section 441.37 makes no provision for the appeal of a denied application filed between May 5 and July 1. For this reason, plaintiff asserts no adequate administrative remedy exists, and that it should therefore be permitted to pursue relief through the courts.

In response, the board claims the two statutes are independent of one another. It posits an aggrieved entity, which receives notification of a tax liability at the beginning of the year, may automatically file an appeal between April 16 and May 5, regardless of whether the entity has complied with section 427.1(14), which the board describes as an unrelated filing requirement.

There is merit to the board’s contention. Moreover, section 427.1(14) may be construed as an extended deadline by which to pray for an exemption. Thereunder, a party may wait to file its application until July 1. In exercising this option, however, that party is voluntarily waiving any recourse it may have had under section 441.37. Failure to exhaust this remedy constitutes a waiver of the right to seek redress from the courts. See Pottawattamie, 254 N.W.2d at 22; Griswold, 201 N.W. at 12.

Plaintiff had an opportunity to lodge an appeal prior to May 5. Instead, it decided to file its request for a tax exemption under Iowa Code section 427.1(14) after May 5. In doing so, Sylvan Woods chose not to take advantage of the primary administrative remedy at its disposal. It thus waived its right to an appeal of the present controversy. The decision of the district court dismissing this case is affirmed.

AFFIRMED.

All justices concur except LAVORATO, J., who takes no part.


author: STRINGER, Justice. GILBERT, Justice

text:
    In re the WELFARE OF C.R.M., child.
    No. C6-98-2385.
    Supreme Court of Minnesota.
    June 15, 2000.

      John M. Stewart, Minnesota State Public Defender, Chad M. Oldfather, Assistant State Public Defender, Minneapolis, for appellant.
    Michael Hatch, Minnesota Attorney General, St. Paul, Robert M. Johnson, Anoka County Attorney, M. Katherine Doty, Anoka, for respondent.
   OPINION

STRINGER, Justice.

In the course of a standard contraband check conducted on students’ coats at a juvenile day school in Anoka County, Minnesota on Monday, November 2, 1998, a teacher found a folding knife with a four-inch blade in appellant C.R.M.’s coat pocket. Appellant, a minor, was a student at the school. Appellant identified the coat as his and said he forgot to remove the knife from his coat after whittling over the weekend. Appellant was convicted for possessing a dangerous weapon on school property under Minn.Stat. § 609.66, subd. Id (1998), a felony offense. The court of appeals affirmed holding that appellant should have known that the knife was in his coat. See In re C.R.M., No. C6-98-2885, 1999 WL 595371, *2 (Minn.App. Aug.10, 1999). Appellant challenges his conviction here, arguing that the state must prove that he had knowledge of possession. We reverse.

Appellant attended Anoka County Juvenile Day School pursuant to a prior dispo-sitional order. Contraband searches are conducted on the students’ coats nearly every day at the school after the coats are hung on hooks in the hallway near the students’ classrooms. If contraband is found, the school’s procedure is for the teacher to enter the classroom nearest to where the coats are hung and to ask who owns the coat. When the coat is identified the student who owns it is asked about the contraband. If the contraband is “serious” the school authorities contact probation officers or the police.

On Monday, November 2, 1998 the lead teacher of the school, Waneta Hord, and several students conducted a routine contraband search. A student brought a coat to Hord reporting a knife in the coat pocket. Hord brought the coat into the nearest classroom, displayed the coat and asked who owned it. Appellant immediately identified the coat as his but when asked by Hord what was in the coat pocket, he said that he did not know. Hord told him that a knife was found in his pocket and removed a folding knife with a four-inch blade. Appellant responded, “Oh man, I forgot to take it out, I was whittling this weekend.” In accordance with school procedure upon finding serious contraband, Hord called the police and retained possession of the knife until the police confiscated it.

Anoka County Police Sergeant Hammes responded to the call from the school and after investigation appellant was charged with violating Minn.Stat. § 609.66, subd. Id, which makes possession of a dangerous weapon on school property a felony level offense. At trial, Hord testified that when she asked who owned the jacket, appellant immediately responded “I do” and was very cooperative throughout all of her questioning. She also testified that when she pulled the knife out and appellant said he had been whittling, his reaction was “spontaneous” and “believable.” Sergeant Hammes testified that appellant admitted that the knife was his, and that the day before he had been whittling with the knife and had put it in his coat pocket but forgot to take it out. Appellant also told Sergeant Hammes that before coming to school on Monday he patted himself down but missed the knife. Appellant’s mother told the court that appellant had on a “double jacket” that morning so even though he patted himself down, he could not feel the knife. A probation officer also told the court there was no evidence that appellant brought the knife to school to get into a fight. The qourt concluded, “I don’t know that I believe that [appellant] was whittling. I believe he brought it accidentally.”

After testimony from Horn and Ham-mes appellant moved for a directed verdict, arguing that any reasonable interpretation of section 609.66, subd. Id, would require appellant to know that the knife was in his coat pocket and that general intent required knowledge ' of possession. The prosecutor responded that the statute does not require knowledge or intent because it creates a strict liability crime-the state need only show appellant possessed a dangerous weapon on school grounds.

The district court determined that appellant was guilty, noting:

I’m going to find him guilty as the law is written because he did possess the knife that was in his coat.
Now I’m going to let you take it up but I can’t get you to take it up unless I find him guilty, and if someone wants to indicate that in order to achieve a felony status there’s got to be mens rea that he had that knife and he knew that he had that knife when he walked in there fine, but right now this isn’t the way the statute reads.

A dispositional order was filed on November 24, 1998, ordering appellant to comply with previously imposed conditions relating to the earlier offenses, to write a letter of apology and to possess no weapons, including knives, until he turned 19.

The court of appeals affirmed. See In re C.R.M., 1999 WL 595871 at *2. The court first reasoned that although a person cannot be found guilty for unwitting possession, this was not unwitting possession because appellant was “aware that he had a duty to avoid bringing a weapon to school” and two days prior to the offense he knowingly possessed the weapon. Id. at 1. The court noted that although the district court believed appellant accidentally brought the knife to school, the district court made no finding as to whether the possession was unwitting. See id. The court of appeals concluded that “[bjecause there is sufficient evidence that appellant should have known that the knife was in his coat, we affirm the trial court.” Id. at *2. The court relied heavily on the fact that even though appellant was charged and convicted of a felony, his sentence was light, explaining that where there is a substantial loss of liberty a different approach may be appropriate, but in negligent possession cases there is “little reason to expect * * * severe loss of liberties * * Id.

On review here appellant again argues that section 609.66, subd. Id, requires the state to prove that appellant knew that he possessed a dangerous weapon. Minnesota Statutes § 609.66, subd. Id, states:

[W]hoever possesses, stores, or keeps a dangerous weapon or uses or brandishes a replica firearm or a BB gun on school property is guilty of a felony and may be sentenced to imprisonment for not more than two years or to payment of a fine of not more than $5,000, or both.

Minn.Stat. § 609.66, subd. Id.

The object of statutory interpretation is to determine and effectuate legislative intent, see MinmStat. § 645.16 (1998), construing words according to their common and approved usage, see Minn.Stat. § 645.08, subd. 1 (1998); in so doing here, we are aware that the legislative authority to create criminal strict liability offenses has been recognized in Minnesota. See State v. Morse, 281 Minn. 378, 383-84, 161 N.W.2d 699, 702-03 (1968). We are also mindful however, that strict liability statutes are generally disfavored, see Staples v. United States, 511 U.S. 600, 606, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), and legislative intent to impose strict criminal liability must be clear, see State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). Our determination that the legislature intended to create a strict liability crime can only be reached after a careful and close examination of the statutory language, see State v. Orsello, 554 N.W.2d 70, 74 (Minn.1996), and we are to apply the “rule of lenity” requiring penal statutes to be strictly construed -in favor of a criminal defendant. See Orsello, 554 N.W.2d at 74.

Our first consideration is whether the legislature intended the terms “possesses, stores or keeps” to require the state to prove that the defendant knew that- he possessed, stored or kept a weapon. These terms are not defined in the statute and dictionary definitions provide little guidance -thus we turn to legislative history. Section 609.66, subd. Id, was introduced in the legislature in February 1993 in three separate bills, none including a reference to knowledge or intent. Legislative discussion before the House Subcommittee on Criminal Justice and Family Law suggests a focus on regulatory concerns, and that, the bill was intended to address inconsistencies in the law by making it a felony for a student to possess a pistol on school grounds as well as to possess other weapons, such as switchblades. An important objective of the bill was thus to make the possession of weapons other than guns in school zones a felony.

The two goals of the bills-to create safer schools and to create consistent felonies for weapon possession in schools-were based on concerns for the public welfare and thus implicate decisions of the United States Supreme Court and this court regarding the mens rea in enforcement of statutes enacted for the welfare of the public. In Morissette v. United States, the Court reflected'on the role of public welfare offenses as part of a criminal statutory scheme:

Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. ⅜ * * [TJheir occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same. * * * Hence, legislation applicable to such- offenses, as a matter of policy, does not specify intent as a necessary element. The accused * ⅜ * usually is in a position to prevent [the violation] with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities:

342 U.S. 246, 255-56, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

More recently in Staples, the Court provided important guidance for our analysis here when it held that the prosecution is required to prove beyond a reasonable doubt that a defendant charged under the National Firearms Act for possessing a machine-gun knew that the weapon he possessed was in fact a machinegun. 511 U.S. at 602, 114 S.Ct. 1793. The Court first acknowledged that, “the existence of a mens rea is the rule of, rather than the exception to,” common law crimes and may be read into common law crimes even where the statute does not explicitly require it. Id. at 605, 114 S.Ct. 1793 (quoting United States v. United States Gypsum Co., 438 U.S. 422, 436, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978)). However, the Court noted that statutes concerning “public welfare” or “regulatory offenses,” which typically “regulate potentially harmful or injurious items,” are not subject to a presumption requiring proof of a mens rea to establish liability. Id. at 606-07, 114 S.Ct. 1793. The rationale for eliminating such a presumption is that regulatory statutes impose liability for the “type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety.” Liparota v. United States, 471 U.S. 419, 433, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). The Court also reasoned that while there is no tradition of lawful possession or selling of hand grenades or narcotics, “there is a long tradition of widespread lawful gun ownership by private individuals in this country,” thus the mere possession of a firearm does not put owners on notice that they are engaging in conduct inherently dangerous to the public. Staples, 511 U.S. at 610, 114 S.Ct. 1793. In fact, the Court observed that precisely because certain guns are “commonplace and generally available * * * we [do] not consider them to alert individuals to the likelihood of strict regulation.” Id. at 611, 114 S.Ct. 1793.

The Staples Court went on to emphasize the importance of the level of punishment attached to an offense in considering whether a statute is regulatory, observing “[historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Id. at 616, 114 S.Ct. 1793. The Court noted that fines and short jail sentences, but not imprisonment, have historically been legitimate punishment for strict liability offenses and reasoned that the less severe penalties attached to public welfare statutes “logically complement” the absence of the mens rea requirement. Id. at 616, 114 S.Ct. 1793. The Court then “questioned whether imprisonment is compatible with the reduced culpability required for * * * regulatory offenses.” Id. at 617-18, 114 S.Ct. 1793. Observing that the public welfare analysis “hardly seems apt” for a felony,-id at 618, 114 S.Ct. 1793 the Court appeared to stop just short of holding that a public welfare offense cannot be a felony. The Court held

where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate the mens rea requirement. In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.

Id. at 618-19, 114 S.Ct. 1793. The Court then concluded that the penalty attached to the statute indicated that Congress did not intend to eliminate the mens rea requirement because “if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect.” Id. at 620, 114 S.Ct. 1793.

In Minnesota, the distinction between strict liability crimes and those requiring a mens rea has been recognized in both orn-ease law and statutes; for example and relevant here, is Minn.Stat. § 609.02, subd. 9 (1998), providing definitions for chapter 609 offenses:

(1) When criminal intent is an element of a crime in this chapter, such intent is indicated by the term “intentionally,” the phrase “with intent to,” the phrase “with intent that,” or some form of the verbs “know” or “believe.”
(2) “Know” requires only that the actor believes that the specified fact exists.
(3) “Intentionally” means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition * * * the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word “intentionally.”
(4)“With intent to” or “with intent that” means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.

Minn.Stat. § 609.02, subd. 9. While we have not yet ruled whether under this statute a chapter 609 offense must be interpreted as a strict liability crime where it contains no language indicating intent or knowledge, in several opinions we have ruled on whether mere “possession” in various contexts requires a mens rea. In State v. Siirila, we affirmed a conviction under Minn.Stat. § 618.02 (1969), which stated “it shall be unlawful for any person to * * * possess * * * any narcotic drug” where appellants had an unusable quantity of marijuana. 292 Minn. 1,10,193 N.W.2d 467, 473 (1971). We observed that the legislature had reduced the crime of possession of a small amount of marijuana from a felony to a gross misdemeanor, see id. at 7, 193 N.W.2d at 471, and concluded

the inference is permissible that, marijuana having been found in a jacket shown to belong to defendant and to have been worn by him, whatever was in the jacket was there with his knowledge. The element of knowledge need not be proved from direct testimony, but may be shown by circumstantial evidence.

Id. at 10, 193 N.W.2d at 473. Later, in State v. Florine, we held that the defendant was guilty under Minn.Stat. § 152.09, subd. 1(2) (1974), of the felony offense of unlawful possession of cocaine, but noted “to convict a defendant of unlawful possession of a controlled substance, the state must prove that defendant consciously possessed * * * the substance and that defendant had actual knowledge of the nature of the substance.” 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).

Again in State v. Strong, we held that Minn.Stat. § 243.55 (1978 & Supp.1979), which provided “[a]ny person who brings * * * into any state correctional facility * « « any firearm^ weapons or explosives of any kind * * * shall be guilty of a felony” required the state to show that the defendant had knowledge of possession of the offensive item. 294 N.W.2d 319, 320 n. 1 (Minn.1980). Because this was not a chapter 609 offense, we specifically declined to address whether section 609.02 cited above dispensed with proof of a mens rea in a chapter 609 offense absent words of intent. See id. at 320. We did observe however, that “most commentators have argued that the legislature should never use strict liability for crimes carrying a sentence of imprisonment and the moral condemnation going with such crimes.” Id. (citing Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 31 at 218, 223 (1972)). We concluded:

We see no reason why the element of scienter should be dispensed with in this situation and we are not convinced that the legislature intended to do so, any more than it'intended to dispense with the requirement of scienter when it enacted the penalties for felonious possession of controlled substances.

Id.

In Orsello we considered whether a stalking statute, MihmStat. § 609.749 (1992 & Supp.1993), defined a crime of general or specific intent. 554 N.W.2d at 72. We sought guidance from section 609.02, subd. 9, and concluded that the statute required specific intent because the terms “intentional conduct” and “in a manner that” indicate specific rather than general intent. See id. at 74. We observed that “[a] criminal state of mind, or a criminal intent, is, of course, a necessary element of any crime having its origin in common law. * * * If the legislature chooses not to include an intent requirement in a statutory crime, one is implied as a matter of law.” Id. at 72 (citation omitted). Finally, we recently held that Minn.Stat. § 169.122, subd. 3 (1998), which provides that “keepfing]” an open bottle of alcohol in a vehicle on a highway is a misdemeanor, does not require the state to prove that the driver of a vehicle had knowledge of . the existence of the open bottle containing intoxicating liquor. See State v. Loge, 608 N.W.2d 152, 153 (Minn.2000).

The rulings of the United States Supreme Court and this court thus highlight the long established principle of American criminal jurisprudence that in common law crimes and in felony level offenses mens rea is required. Nonetheless, respondent argues that because Minn.Stat. § 609.02, subd. 9, specifically provides that if the legislature intends to include mens rea in a chapter 609 crime it must be evidenced in the statutory language by some form of the terms “knowledge,” “belief’ or “intent,” and none appears in section 609.66, subd. Id, it is clear that the legislature did not intend to include mens rea as ■ an element of the crime charged.

In the context of Supreme Court and this court’s criminal jurisprudence regarding the relationship of felony level offenses and mens rea, and our long accepted rules of statutory construction, we do not believe the expression of legislative intent of section 609.02, subd. 9, is so clear. We observe initially that the legislature never explicitly indicated that it intended to create a strict liability offense. The legislative discussion of the severe penalty attached to the section 609.66, subd. Id, offense is an important factor in our analysis because it underscores that the weapon possession statute was intended to be more than merely regulatory-its legislative sponsor emphasized that the bill was intended to create and expand felony level penalties to include the possession of all dangerous weapons on school grounds.

Further, section 609.02, subd. 9, definitions provide no clearer illumination as to the legislature’s intent with respect to the weapon possession offense. The Supreme Court has suggested that some indication of legislative intent, whether express or implied, is required to dispense with mens rea as an element of a felony level crime. In Staples, the Court stated that if the legislature wanted to make “outlaws” of those possessing weapons while being completely ignorant of the offending characteristics of the weapons, it would have spoken clearly to that effect. 511 U.S. at 620, 114 S.Ct. 1793. Similarly, in United States Gypsum, the Court noted that “[c]ertainly far more than a simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” 438 U.S. at 438, 98 S.Ct. 2864. We have expressed similar concerns, for example in Niesen we stated that “we are guided by the public policy that if criminal liability, particularly gross misdemeanor of felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.” 415 N.W.2d at 329. We conclude that the “catch all” language of section 609.02, subd. 9, which provides that proof of intent with respect to the' numerous criminal statutes included in chapter 609 is an element of the crime when the words “know,” “intentionally,” or “with intent to” are used is not a sufficiently clear expression of legislative intent to dispense with it with respect to the felony level crime charged here. If. it - is the legislature’s purpose to convict a student for a felony for the unknowing possession of a knife on school property, it should say so directly and unequivocally with respect to that specific crime and not with the convenient but far less specific “if we did not say it we do not mean it.”

The public welfare nature of the offense charged here is also an important consideration in our analysis. Certain items of property, for example unlicensed hand grenades, by their very nature suggest that possession is not innocent because possession itself is demonstrative of intent. See Staples, 511 U.S. at 609, 114 S.Ct. 1793 (citing United States v. Freed, 401 U.S. 601, 609, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971)). On the other hand, great care is taken to avoid interpreting statutes as eliminating mens rea where doing so' criminalizes a broad range of what would otherwise be innocent conduct. See id. at 610, 91 S.Ct. 1112. In Staples the Court held that lawful gun ownership fell into the second category, pointing to the tradition of gun ownership and the fact that guns have not historically been considered of such a dangerous nature that their owners should be on notice that mere possession is a crime. Applying this analysis to the facts here, we observe that knives as common household utensils are clearly not inherently dangerous, as they can be used for a myriad of completely benign purposes-for example peeling an orange or sharpening a pencil-a'nd are certainly not as inherently anti-social as illegal drugs and hand grenades. Moreover, mere possession of something that may fit the statutory definition of “dangerous weapon” -for example, a paring knife or scissors-would not create a level of panic, even on school property, that a “reasonable person should know [possession] is subject to stringent public regulation * * Liparota, 471 U.S. at 433, 105 S.Ct. 2084. In - many if not most cases prosecuted under a statute proscribing occurrences on school property, we note further, the accused will be a school-aged minor.

Thus we conclude that in light of our jurisprudential history requiring clear legislative intent to dispense with proof of mens rea and our heightened concern when it relates to felony level crimes, and because we believe the nature of the weapon here-a knife-was not so inherently dangerous that appellant should be on notice that mere possession would be a crime, respondent was required to prove that appellant knew he possessed the knife on school property as an element of the section 609.66, subd. Id, offense charged.

We reverse the court of appeals decision and remand to the trial court to determine whether 'appellant had knowledge of possession of the knife while on school property-

Reversed.

GILBERT, Justice

(concurring specially)-

I concur with the result reached by the majority. However, I write separately to emphasize my concern about the majority opinion’s new requirement that if the legislature intends to make a crime a strict liability offense, “it should say so directly and unequivocally.” This new requirement deviates from our longstanding precedent relating to strict liability crimes that requires only that there be clear legislative intent to dispense with mens rea, rather than requiring a direct and unequivocal statement of intent to create a strict liability offense. See State v. Neisen, 415 N.W.2d 326, 329 (Minn.1987). We have held that clear intent to create a strict liability offense can come from interpreting the statute as a whole, see State v. Loge, 608 N.W.2d 152, 155-56 (Minn.2000). While we were interpreting a misdemean- or statute in Loge, the requirement that intent be clear comes from Neisen, in which we stated the rule was particularly appropriate for “gross misdemeanor or felony liability.” 415 N.W.2d at 329. In effect and contrary to our precedent, the majority unnecessarily adopts a per se rule that absent a direct and unequivocal statement obviating the need to prove intent, no felony criminal statute can be interpreted to create a strict liability offense. This change in our law is an unnecessary departure where here, after looking for and failing to find an express statement, the majority engages in the very analysis which it declares is unnecessary: it looks at the statute as a whole and concludes that there is not clear legislative intent to enact a strict liability offense.

      . Contraband was described by a school authority as everything from tobacco products and gum to weapons.

      . The appropriate motion under the fttfinneso-ta Rules of Criminal Procedure is a motion for judgment of acquittal. See Minn. R.Crim. P. 26.03, subd. 17.

      . For appellant's ' earlier offenses he was placed under the supervision of Anoka County Juvenile Corrections until his 19 th birthday, he was ordered to pay restitution of $85.47 to the victims of his assaults, to have no contact with the victims, one victim's family members and his accomplices, to engage in no assaul-tive or violent behavior, to attend counseling and to be monitored under home electronic monitoring.

      . The court stated that an example of unwitting possession would be if a classmate put the knife into appellant’s coat without his knowledge. See In re C.R.M., 1999 WL 595371 at *1.

      . The court also cited United States v. Garrett, 984 F.2d 1402, 1413 (5th Cir.1993), for the holding that passengers possessing weapons on airplanes are guilty of a misdemeanor if they knew or should have known that they were carrying a concealed weapon as they boarded an airplane. See In re C.R.M., 1999 WL 595371 at *2. Although the court in Garrett explicitly stated that the "should have known” standard was appropriate in large measure because the offense was a misdemeanor and not a felony, Garrett, 984 F.2d at 1412-13, the court of appeals referred to Minnesota statutes creating felonies in negligence crimes, for example Minn.Stat. § 609.205 (1998), which provides a penalty of up to 10 years in prison for culpable negligence resulting in the death of another, and Minn.Stat. § 609.576(b)(3) (1998), which provides a three-year penalty for culpable negligence resulting in a fife causing property damage. See In re C.R.M., 1999 WL 595371 at *2.'

      . Webster’s defines “possess” as “to have and to hold as property.” Webster’s Third New International Dictionary 1770 (1961). "Store” is defined as "to collect as a reserved supply: lay away: accumulate * * * something that is stored or kept for future use.” Id. at 2252. Among the Webster’s definitions of "keep” is “to retain or continue to have in one’s possession or power esp. by conscious or purposive policy.” Id. at 1235.

      . See H.F. 222, H.F. 559, S.F. 494, 78th Minn. Leg. 1993.

      .For example, Representative Charles Weaver testified, that three million crimes occur on school campuses every year, 160,000 children skip school every year for fear of being hurt, and weapons are appearing more frequently in Minnesota schools. See Heáring on H.F. 222, H. Subcomm. Crim. Justice and Fam. Law, 78th Minn. Leg., March 3, 1993 (audio tape) (comments of Rep. Charles R. Weaver).

      . Mens rea is "[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness * * *. Mens rea is * * * [an] essential ele-mente] of every crime at common law.” Black's Law Dictionary 999 (7th ed.1999).

      . “General intent requires only that the defendant engaged intentionally in specific, prohibited conduct * * * In contrast, specific intent requires that the defendant acted with the intention to produce a specific result, such as is the case in premeditated murder.” Orsello, 554 N.W.2d at 72 (citation omitted).

      . "A severe penalty is a * * * factor tending to suggest that [the legislature] did not intend to eliminate the mens rea requirement.” Staples, 511 U.S. at 618, 114 S.Ct. 1793.

      . Some states imposing a felony penalty on the possession of a weapon on school property require knowledge of possession. For example, in Illinois:
      [a] person commits the offense of unlawful use of weapons when he knowingly:

      ⅜ ⅜ ⅜ *
      Carries or possesses on about his person any * * * switchblade knife * * * while in the building or on the grounds of any elementary or secondary school, community college, college or university.

      Any person convicted of [this] violation * * * commits a * * * felony.
      720 Ill. Comp. Stat. 5/24 - 1(a)(12) & (b) (1998) (emphasis added).
      We also note the federal statute with wording very similar to our weapon possession statute-the Gun-Free Schools Act of 1994-provides "each State receiving Federal funds under this chapter shall have in effect a State law requiring local educational agencies to expel from school for a period of not less than one year a student who is determined to have brought a weapon to school.” See 20 U.S.C. § 8921(b)(1) (1998). At least with respect to gun-free school zones, Congress did not make knowledge a requirement of the violation but also did not impose a criminal sanction.

      . A "dangerous weapon” is defined as:
      any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm.
      Minn.Stat. § 609.02, subd. 6 (1998).

      . We express a note of concern regarding the court of appeals’ comment that the statute was a strict liability offense because of the mild penalty imposed on appellant The fact that appellant received a light sentence is of no consequence in the determination of whether mens rea is required under the statute because obviously the state’s burden of proof of guilt cannot be determined by the level of sentence the trial court later imposes.

      .The special concurrence obviously misreads and overstates the majority holding when it suggests that we are creating a new standard requiring the legislature to explicitly state its intent to create strict liability offenses in all felony level crimes.


author: J.E. Lancaster Associate Justice

text:
    Peggy Sue AVERY, Relator, v. FARMSTEAD FOODS/SEABOARD CORPORATION and The Hartford, Respondents, and Special Compensation Fund.
    No. C4-00-412.
    Supreme Court of Minnesota.
    June 19, 2000.
    Donaldson V. Lawhead, Austin, for relator.
    Michael D. Miller, Nancy Evelyn Lamo, McCollum, Crowley, Vehanen, Moschet & Miller, Ltd., Bloomington, for respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed February 7, 2000, be, and the same is, affirmed without opinion. See Minn. R. CivApp. P. 136.01, subd. 1(b).

BY THE COURT:

J.E. Lancaster Associate Justice


author: CRIPPEN, Judge

text:
    In the Matter of the WELFARE OF D.S.N., Child.
    No. C1-99-1493.
    Court of Appeals of Minnesota.
    June 2, 2000.

      John M. Stuart, State Public Defender, Charlann E. Winking, Assistant Public Defender, Minneapolis, for appellant D.S.N.
    Mike Hatch, Attorney General, St. Paul, and Roger S. Van Heel, Stearns County Attorney, Sam D. Young, Assistant County Attorney, St. Cloud, and Walter Kaminsky, Sherburne County Attorney, Elk River, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, CRIPPEN, Judge, and KLAPHAKE, Judge.
   OPINION

CRIPPEN, Judge

Appellant challenges the trial court adjudication that he committed second-degree burglary, contending that his statements to police should have been suppressed as involuntary due to threats and promises of a police officer. Because the record requires a conclusion that appellant’s statements were not. voluntary, we reverse.

FACTS

Adjudicating appellant’s offense, following a trial, the trial court found that appellant entered a home without consent, took cash and electronic items valued at approximately $560, and caused damages of approximately $50 to the window that was broken to gain entry.

The principal incriminating evidence at trial was the statement appellant gave to police in November 1997. His motion to suppress this statement was denied by the trial court in a proceeding held in December 1998.

Appellant was almost 17 years old at the time of his statement to police. He did not have extensive experience with the criminal justice system; his criminal history consisted only of petty offenses, including misdemeanor theft, curfew violation, and minor consumption.

The police questioned appellant three days after he and others were seen carrying items that were later identified as the stolen property. Appellant was questioned at the police station, with his mother present, and the conversation was recorded. During this conversation, the police promised appellant that if he confessed he could go home that evening with his mother, but that if he did not confess he would be shipped away to a secure detention facility for several days. Appellant was also told, in a conversation stating how he would pay for an uncooperative attitude, that the court could “ship you away” and could certify him to face adult trial and punishment for a burglary offense. Appellant confessed to the burglary, his subsequent suppression motion was denied, and after a trial he was adjudicated delinquent.

ISSUES

1. Did the trial court err in denying appellant’s motion to suppress his statements to police?

2. Is there cause for continued court jurisdiction in this case?

ANALYSIS

1. Suppression of the statements.

A confession is admissible only if it was freely and voluntarily given. State v. Riley, 568 N.W.2d 518, 525 (Minn.1997). Where a defendant seeks to suppress a confession on the grounds that it was involuntary, the state bears the burden to prove the voluntariness of the confession “by a fair preponderance of the evidence.” State v. Thaggard, 527 N.W.2d 804, 807 (Minn.1995). This court is not bound by the trial court’s decision as to whether or not the confession was voluntary; this court independently determines, “on the basis of all factual findings that are not clearly erroneous, whether or not the confession was voluntary.” Id.

A juvenile’s confession is regarded as voluntary,, “if the totality of the circumstances show that the statement was the product of a free-will decision.” Welfare of G.M., 560 N.W.2d 687, 696 (Minn.1997) (citations omitted). We must look to all relevant factors in determining the voluntariness of the confession, including the defendant’s age, maturity, intelligence, education, experience and ability to comprehend; length and legality of the detention; lack of, or adequacy of a warning; the nature of the interrogation; and whether the defendant was deprived of physical needs. Thaggard, 527 N.W.2d at 808.

We are mindful that the police “proceed on thin ice and at them own risk” when they use deception or trickery to obtain a confession. Thaggard, 527 N.W.2d at 810. Although the police “invite suppression * * * when they use promises, express or implied,” we observe also, provided that the promises did not rise to the level of non-prosecution, that the use of deceit or promises does not automatically render a confession involuntary. See id. at 811. Promises of favorable treatment invite suppression and have led to suppression where, given the total circumstances, hope is implanted for escaping punishment. See State v. Anderson, 404 N.W.2d 856, 858 (Minn.App. 1987) (confession involuntary where police representations to 20-year-old implied defendant would receive treatment, rather than prosecution, if he confessed), review denied (Minn. June 25, 1987); see also State v. Gard, 858 N.W.2d 463, 468 (Minn. App.1984) (confession involuntary where police implied no charges would be brought, and defendant would instead receive counseling, if the defendant confessed); State v. Biron, 266 Minn. 272, 282, 123 N.W.2d 392, 399 (1963) (confession involuntary where police statements and-representations to 18-year-old were persuasive and “could only have had the effect of implanting” the hope that he would be treated as a juvenile or charged with a lesser crime).

Appellant was not subjected to any deprivations, the interrogation lasted only a short time, he received Miranda warnings, and the trial court found he was a “typical 17 year old.” These factors all lend support for use of his confession, but they are overwhelmed by other facets of the record in this case. It is evident that appellant had little experience with' the criminal justice system. And the record does not permit us to minimize the magnitude of the threats and promises made to appellant by the police. Finally, the record shows the clouding of the circumstances of interrogation by evidence that the police disregarded appellant’s evident choice to remain silent.

The presence of a parent during questioning is a factor that may weigh in favor of admissibility. See G.M., 560 N.W.2d at 696. Although appellant’s mother was present, her presence was of little impact in light of the facts that she had a passive role, was seemingly compliant with police, and was herself seemingly confused about the consequences of a confession. Adding to the difficulty in attributing the mother’s judgment to her son, the police'employed her presence to the end of obtaining appellant’s confession, representing to appellant that his mother was someone whom' appellant had to impress to win leniency from the police. In addition, the record indicates that, just as police officers evidently disregarded appellant’s attempt to exercise Ms right to remain silent, they later disregarded appellant’s mother’s interest in talMng to lawyer, stated after appellant had made many of the incriminating statements.

The police in this case clearly promised appellant that if he told the “truth,” as the police officers saw the truth, they would allow him to go home rather than face secure detention for days. This promise was stated so clearly that appellant expressly viewed the discussion as a negotiation, an offer that if he talked correctly he would not be locked up and would get to go home. In fact, the officer discussed having appellant tell the “truth” as a “deal.” In addition, the officer contrasted telling the “truth” with having a “hard ass attitude;” in which case appellant would face the threat that authorities would “ship” him away. The officer explained to appellant that he knew the two county attorneys who would handle the case and that they would proceed based on the officer’s assessment of “what kind of guy” appellant was. Finally, adding to the seriousness of the record of duress in this case, the officers explained to appellant that he could be certified as an adult and sent to prison, stating “it’s sort of like murder * * * you can go to prison for life,” when there is no indication that certification was either likely or called for in this burglary case.

The trial court cited, and respondent cites, State v. Jungbauer, 348 N.W.2d 344, 346 (Minn.1984). But this case is distinguishable on the basis of the experience of the defendants. In Jungbauer, the defendant had had two previous felony convictions and clearly was experienced with criminal justice system. Id. at 346. In this case, appellant was not experienced with the criminal justice system; his previous record consisted of only petty offenses. Appellant’s lack of experience with the criminal justice system weighs against finding his confession was voluntary. See id.; see also Thaggard, 527 N.W.2d at 812 (finding confession voluntary, court observes factor that defendant had prior felony convictions and thus experience with criminal justice system); Anderson, 404 N.W.2d at 858 (holding confession involuntary, court considers defendant’s lack of experience with the criminal justice system).

Under the totality of the circumstances, we find inescapable the conclusion that appellant’s confession was involuntary, coerced by the police,' and must be suppressed.

2. Court jurisdiction.

The burglary in this case occurred on November 27, 1997, and appellant’s statement to the police occurred on November 30, 1997. Notwithstanding the evident completion of the investigation, Stearns County authorities did not file a petition for delinquency for more than 5 months. Upon the filing of the petition, the matter was transferred to appellant’s county of residence, apparently in St. Cloud, near the Stearns County boundary but in Sherburne County. Appellant’s first court appearance was not until July 1998. Appellant having requested an omnibus hearing, the matter was returned to Stearns County, which did not hold the hearing until December 1998, over one year after the investigation in this matter was completed. Thereupon, an additional five-month delay occurred before the trial finally occurred in Stearns County in May 1999. Disposition on this case did not occur until July 1999, some 20 months after the offense occurred. Appellant reached adulthood on December 4, 1998, and the dispositional jurisdiction of the court expired one year later. See Minn. Stat. § 260.181. subd. 4(a) (1998). By December 4, 1999, appellant had evidently served a 60-day jail sentence and several months of additional probation.

The inexplicable long delays in the handling of this relatively straightforward delinquency case have removed the case from the court’s jurisdiction. The adjudication being prompted by error, we reverse and dismiss.

DECISION

Appellant, soon to be 17, made an involuntary confession where police promised him he could go home if he confessed and threatened to send him away for several days if he did not confess, and where police otherwise threatened appellant with punishment that would occur if he did not confess.

Reversed.

      . At the time of the police interview, appellant was approximately one week shy of his 17th birthday.