ALJ, Matter of, C-90-9

Citation836 P.2d 307
Decision Date30 June 1992
Docket NumberNo. C-90-9,C-90-9
PartiesIn the Matter of the Interests of ALJ, a Minor. ALJ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, and David Gosar, Appellate Counsel, of the Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen., Michael Lee Hubbard, Deputy Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.


MACY, Justice.

Appellant ALJ, a minor, appeals from the trial court's finding that he committed a delinquent act by recklessly endangering We affirm in part and vacate in part.

others and from the court's order of disposition pertaining to his probation conditions.

Appellant raises the following issues:


Is a person guilty of the crime of reckless[ ] endangering if he points an unloaded weapon at another? In other words, does the reckless endangering statute require that the actor place another in an actual state of danger?


Are conditions J, L, N, and P of the appellant's probationary terms improper? More specifically, could the court order: A) searches of the appellant's person and abode without requiring a reasonable suspicion that a probationary term had been violated[ ], B) that appellant's driver's license was automatically revoked should he violate any of the terms of probation[ ], and C) that he pay the costs of his court appointed attorney without first inquiring into his ability to pay?


Could the court place the appellant on three years of probation when it could only have sentenced an adult convicted of the same offense to one year of probation?

During the evening of November 22, 1989, Appellant attended a party held in a gravel pit near Greybull, Wyoming. An estimated forty to fifty people attended this party, most of whom were juveniles. Many of the partygoers were consuming alcohol. Appellant brought a .25 caliber semi-automatic pistol to this party, and, on four separate occasions, he pointed the gun at individuals who were in attendance. The police were not informed of Appellant's actions until several days after the party was held when the mother of one of the four victims told her son to notify the police.

The Big Horn County prosecutor filed a petition, alleging that Appellant committed a delinquent act by recklessly endangering the four individuals at the party in violation of Wyo.Stat. § 6-2-504(b) (1988). On June 7, 1990, a jury found the allegations in the petition were true. The jury was not instructed to make a finding regarding whether the gun was loaded. The district judge sentenced Appellant to an indeterminate period at the Wyoming Boys' School, but he suspended imposition of the sentence and placed Appellant on probation for three years.

Appellant's probationary conditions, among others, were that (1) Appellant would submit to random chemical testing for the presence of alcohol; (2) Appellant's driving privileges would be temporarily revoked with further revocation to be automatic if Appellant violated any probation condition or was arrested or ticketed for a traffic violation; (3) Appellant's parents would cooperate in residential checks at the probation officer's discretion; and (4) Appellant would reimburse the Wyoming public defender for the cost of his defense.

Reckless Endangerment

Appellant contends that an actor can be guilty of reckless endangerment only if he actually puts the victim in danger. Wyo.Stat. § 6-2-504 (1988) provides in pertinent part:

(a) A person is guilty of reckless endangering if he recklessly engages in conduct which places another person in danger of death or serious bodily injury.

(b) Any person who knowingly points a firearm at or in the direction of another, whether or not the person believes the firearm is loaded, is guilty of reckless endangering unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another.

Appellant's position is that a person is not guilty of reckless endangering under this statute when he points an unloaded weapon at someone, "whether or not the person believes the firearm is loaded." (Emphasis added.) Appellant's argument is that, to give effect to the word "believes," the legislature must have meant that anyone who points a loaded gun at another is guilty, whether or not he believes the gun is loaded. According to Appellant's interpretation the jury should have been instructed to make a finding regarding whether or not the gun was loaded.

Appellant relies upon cases from other jurisdictions to bolster his argument that, to be guilty, the actor must place the victim in actual danger. Like Wyoming has done, these other states have adopted, at least in part, the MODEL PENAL CODE'S definition of reckless endangering, arguably making their statutory interpretations relevant. 1 However, none of the jurisdictions relied upon has adopted the same reckless endangering statute as Wyoming has adopted.

Appellant places emphasis on State v. McLaren, 135 Vt. 291, 376 A.2d 34 (1977). Vermont's reckless endangering statute, like the MODEL PENAL CODE, provides, " 'Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.' " McLaren, 376 A.2d at 36. In McLaren, the court found that the presumption of danger could not be construed to make irrelevant the actual dangerous nature of the firearm itself. Id. McLaren is not persuasive in interpreting Wyoming's statute. 2

Our rules of statutory interpretation are well established:

"[A]ll portions of an act must be read in pari materia, and every word, clause and sentence of it must be considered so that no part will be inoperative or superfluous," Hamlin v. Transcon Lines, Wyo., 701 P.2d 1139, 1142 (1985), and a statute should not be construed to render any portion of it meaningless, or in a manner producing absurd results.

Story v. State, 755 P.2d 228, 231 (Wyo.1988), after remand, 788 P.2d 617, cert. denied, 498 U.S. 836, 111 S.Ct. 106, 112 L.Ed.2d 76 (1990) (citations omitted), quoted in GN v. State, 816 P.2d 1282, 1283 (Wyo.1991). We also recognize that ambiguity in a criminal statute should be resolved in favor of lenity. Story, 755 P.2d at 231.

We interpret § 6-2-504(b) to mean that, whenever an actor knowingly points a firearm at another, whether the firearm is loaded or not, he is guilty of reckless endangering, provided the firearm was not pointed for defensive purposes. The second clause of § 6-2-504(b) merely makes irrelevant the actor's belief as to the loaded or unloaded nature of the gun. While it is true that an ambiguous criminal statute should be resolved in favor of lenity, the rule is applicable only to the extent that an ambiguity exists. Wyoming's reckless endangering statute is not ambiguous.

Appellant also argues that it would be an odd construction to say a person is guilty of reckless endangering when no one has actually been endangered by the person's actions. To the contrary, an unloaded gun pointed at another creates a dangerous situation. The unknown and frequently violent reactions of persons having guns pointed at them, unloaded or not, create an obvious danger. Many people are killed each year with guns which the handlers knew were unloaded. State v. Meier, 422 N.W.2d 381, 385 (N.D.1988). Nothing is odd in protecting against the potential harm which exists any time a person points a gun at another.

Probation Conditions

Appellant claims that the probation condition requiring him to submit to random chemical testing for the presence of alcohol violates his right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution and article 1, section 4 of the Wyoming Constitution. Appellant bases his contention on Pena v. State, 792 P.2d 1352 (Wyo.1990), which involved an adult parolee. In Pena, we found that, while parolees have lesser Fourth Amendment protections than law abiding citizens have, a parole officer, before he makes a search, must still have a "reasonable suspicion" that the parolee committed a parole violation. 792 P.2d at 1357-58. On the basis of the holding in Pena, Appellant argues that, since urinalysis is a search, his probation condition should have included a requirement that the probation officer must reasonably suspect that a probation violation exists before he orders a test. 3

Appellant's argument necessarily assumes that: (a) urinalysis is a search; (b) Fourth Amendment protections apply to juveniles; and (c) adult and juvenile probationers are entitled to the same Fourth Amendment protections. We agree with Appellant's first assumption and adopt the Supreme Court's finding in Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), that the testing of urine is a search. For this case, we can assume, without deciding, that Fourth Amendment protections apply to juveniles in adjudicatory proceedings. 4 However, the Fourth Amendment protections which apply to adult probationers do not necessarily apply to juvenile probationers. The dispositional phase of juvenile proceedings requires broad judicial discretion to accommodate the unique rehabilitative needs of juveniles. We hold that it is within the court's discretion to allow a probation officer to search a juvenile without reasonably suspecting that a probation violation exists.

Other courts have recognized that minors' constitutional rights available in the adjudicatory stage are not necessarily applicable in the dispositional stage. The Supreme Court has found that in adjudicatory hearings minors are entitled to those rights which comport with due process and fair treatment under the Fourteenth Amendment to the United States Constitution. In re Gault, ...

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