A.E., In Interest of, 960079

• Decision Date: 16 January 1997
• Docket Number: No. 960079,960079
• Citation: 559 N.W.2d 215
• Parties: In the Interest of A.E., A Child. Stephen R. DAWSON, Petitioner and Appellee, v. Hignonon ESPARZA, Terry Ysaquirre, Respondents, and A.E., a Child, Respondent and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 215

559 N.W.2d 215

1997 ND 9

In the Interest of A.E., A Child.

Stephen R. DAWSON, Petitioner and Appellee, v. Hignonon ESPARZA, Terry Ysaquirre, Respondents, and A.E., a Child, Respondent and Appellant.

Criminal No. 960079.

Supreme Court of North Dakota.

Jan. 16, 1997.

Stephen R. Dawson (argued), Assistant State's Attorney, Fargo, for petitioner and appellee.

James F. Lester (argued), Fargo, for respondents and appellant.

OPINION

MARING, Justice.

¶1 A.E. and five other juveniles were arrested after Cheryl Tendeland was shot and killed while sitting in her car in West Fargo, North Dakota on the evening of November 15, 1995. A petition was filed in Cass County Juvenile Court alleging A.E. was a delinquent child because he had committed conspiracy to commit armed robbery on or about November 15, 1995, in the Tendeland incident. The State filed a motion to transfer jurisdiction to Cass County District Court, and after a hearing, the court granted the motion. It is from this order that A.E. appeals.

¶2 A.E. argues on appeal that the State did not meet its burden of persuasion on the question of whether there existed reasonable grounds to believe A.E. committed the act of conspiracy to commit armed robbery. A.E. also claims that the State failed to meet its burden of persuasion that A.E. is not amenable to treatment as a juvenile.

¶3 This court's review of a juvenile court's order is similar to a trial de novo. In Interest of T.M., 512 N.W.2d 441, 442 (N.D.1994). We independently review the evidence, and our review is not limited to a determination of whether the juvenile court's findings are clearly erroneous. Id. This standard is also set forth in N.D.C.C. § 27-20-56 as follows: "The appeal must be heard by the supreme court upon the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court."

¶4 N.D.C.C. § 27-20-34(1)(c) authorizes transfer of some offenses from juvenile court to the district court for prosecution, providing in part:

1. After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense ... the court before hearing the petition on its merits shall transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if:

* * * * * *

c. (1) The child was fourteen or more years of age at the time of the alleged conduct;

(2) A hearing on whether the transfer should be made is held in conformity with sections 27-20-24, 27-20-26, and 27-20-27;

(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and the child's parents, guardian, or other custodian at least three days before the hearing; and

(4) The court finds that there are reasonable grounds to believe that:

(a) The child committed the delinquent act alleged;

(b) The child is not amenable to treatment or rehabilitation as a juvenile through available programs;

(c) The child is not treatable in an institution for the mentally retarded or mentally ill;

(d) The interests of the community require that the child be placed under legal restraint or discipline; and

(e) If the child is fourteen or fifteen years old, the child committed a delinquent act involving the infliction or threat of serious bodily harm.

¶5 N.D.C.C. § 27-20-34(1)(c)(4) establishes "reasonable grounds" as the standard for waiver of jurisdiction and transfer of the offense from juvenile court to district court. N.D.C.C. § 1-02-03 provides that "[t]echnical words and phrases and such others as have acquired a particular and appropriate meaning in law, or as are defined by statute, must be construed according to such peculiar and appropriate meaning or definition." The meaning of "reasonable grounds" is equivalent to "probable cause." In Interest of M.D.N., 493 N.W.2d 680, 684 (N.D.1992); see also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). "Probable cause is a minimal burden of proof ... [I]f it appears to be so or there is a definite probability based on substantial evidence, the standard of probable cause has been met." M.D.N., at 684 (citation omitted). The State has the burden of persuasion on the issue of whether there are reasonable grounds to believe that the child committed the delinquent act. Id.; In Interest of A.D.L., 301 N.W.2d 380, 383 (N.D.1981).

I

¶6 A.E. contends that the juvenile court erred in finding reasonable grounds under N.D.C.C. § 27-20-34(1)(c)(4)(a) to believe that A.E. committed the delinquent act of conspiracy to commit armed robbery. N.D.C.C. § 12.1-06-04(1) provides:

A person commits conspiracy if he agrees with one or more persons to engage in or cause conduct which, in fact, constitutes an offense or offenses, and anyone or more of such persons does an overt act to effect an objective of the conspiracy. The agreement need not be explicit, but may be implicit in the fact of collaboration or existence of other circumstances.

To be guilty of conspiracy, one need only "believe that he was participating in an agreement with another to engage in criminal conduct, manifested by some overt act." In Interest of J.A.G., 552 N.W.2d 317, 320 (N.D.1996), (quoting State v. Rambousek, 479 N.W.2d 832, 835 (N.D.1992)).

¶7 At the transfer hearing, detective Gregory Warren of the Fargo police department testified that Cheryl Tendeland died of a shotgun wound to the head while sitting in a car in West Fargo on the night of November 15, 1995; Pat Tendeland gave the officers at the scene the license number of a car which was later located; Moorhead police officers arrested four juvenile occupants of the car when it was located; police officers also recovered a sawed-off shotgun and shells from the vehicle; and Detective Warren later interviewed J.G., one of the occupants of the car. Detective Warren testified that during this interview, J.G. told him A.E. was present in the vehicle on the night of November 15, 1995, during the shooting; when they saw the Tendeland vehicle, the driver stopped the car and B.G. and M.C. got out with the shotgun; soon after this, a shot was heard, and J.G., A.E. and the other passengers yelled for the driver to stop the car; A.E. was present the night prior to the shooting when B.G. left with the same shotgun and returned with several items obtained in a robbery; and A.E. was present when the spoils from that robbery were divided.

¶8 After Detective Warren's testimony, the trial court concluded "there is a greater likelihood than not that the offense of conspiracy to commit armed robbery occurred ... [and that] the juvenile in this matter [A.E.] participated in the offense." Based on our de novo review of the record and giving appreciable weight to the juvenile court's findings, we hold that the State met its burden of persuasion and established reasonable grounds to believe that A.E. committed the delinquent act of conspiracy to commit armed robbery.

II

¶9 A.E. next contends that the juvenile court erred in finding A.E. is not amenable to treatment or rehabilitation as a juvenile through available programs. We do not agree.

¶10 In 1995, the North Dakota Legislature enacted amendments to N.D.C.C. § 27-20-34 by 1995 N.D. Sess. Laws, Ch. 124, § 15 effective August 1, 1995. One of those amendments was codified as N.D.C.C. § 27-20-34(2), which provides:

(2) The burden of proving reasonable grounds to believe that a child is amenable to treatment or rehabilitation as a juvenile through available programs is on the child in those cases in which the alleged delinquent act involves the offense of manslaughter, aggravated assault, robbery, arson involving an inhabited structure, or escape involving the use of a firearm, destructive device, or other dangerous weapon or in those cases where the alleged delinquent act involves an offense which if committed by an adult would be a felony and the child has two or more previous delinquency adjudications for offenses which would be a felony if committed by an adult.

This amendment was enacted in response to the increase in violent crime by juveniles, with punishment as its purpose. The legislative history of this amendment reveals the intent was to shift the burden of proof of the element of amenability to treatment from the State to the child in cases in which the alleged delinquent act involved specific enumerated crimes. See Hearing on S.B. 2264, before the Joint Senate House Judiciary Committee, 54th Legislative Assembly (1995), (January 25, 1995, testimony of Heidi Heitkamp, Attorney General.) Thus, in a transfer hearing which involves a crime enumerated in subsection (2), the child has the burden of persuasion that there are reasonable grounds to believe she/he is amenable to treatment or rehabilitation through available programs. ¹ N.D.C.C. § 27-20-34(2). We hold subsection (2) creates a limited exception to the general rule set forth in subsection (1)(c)(4)(b), N.D.C.C. § 27-20-34 that the State has the burden of persuasion that there are reasonable grounds to believe that the child is not amenable to treatment or rehabilitation as a juvenile through available programs. N.D.C.C. § 27-20-34(2); N.D.C.C. § 1-02-07.

¶11 The burden of persuasion is "reasonable grounds to believe" that the child is amenable to treatment. N.D.C.C. § 27-20-34(2). As previously noted, the meaning of "reasonable grounds" is equivalent to probable cause. In Interest of M.D.N., 493 N.W.2d 680, 684 (N.D.1992). "We have held that if it appears to be so or there is a definite probability based on substantial evidence, the standard of probable cause has been met." Id. (citation omitted).

¶12 The transfer statute sets forth the factors that the court shall consider in determining a child's amenability to treatment and rehabilitation. N.D.C.C. § 27-20-34(3). These factors include age, mental capacity, maturity, degree of criminal sophistication exhibited, previous record, success or...