In re O.F.

• Decision Date: 13 October 2009
• Docket Number: No. 20090137.,20090137.
• Citation: 773 N.W.2d 206,2009 ND 177
• Parties: In the Interest of O.F., a child. Jeffrey Ubben, Petitioner and Appellee v. O.F., child, Respondent and Appellant and D.F., mother, and S.F., father, Respondents.
• Court: North Dakota Supreme Court

773 N.W.2d 206

2009 ND 177

In the Interest of O.F., a child Jeffrey Ubben, Petitioner and Appellee v. O.F., child, Respondent and Appellant and D.F., mother, and S.F., father, Respondents.

No. 20090137.

Supreme Court of North Dakota.

October 13, 2009.

Jeffrey Ryan Ubben, Assistant State's Attorney, Bismarck, ND, for petitioner and appellee.

Bradley D. Peterson, Bismarck, ND, for respondent and appellant.

KAPSNER, Justice.

[¶ 1] O.F., a 17-year-old juvenile, appeals from a juvenile court order adjudicating him a delinquent child for committing the delinquent act of mistreating an animal in violation of state law. We affirm, concluding O.F.'s double jeopardy rights were not violated in this case and the juvenile court did not err in refusing to recognize a parent-child testimonial privilege.

I

[¶ 2] On June 24, 2008, O.F., who was born in December 1991, was adjudicated by the juvenile court to be unruly and delinquent as defined by N.D.C.C. § 27-20-02. The juvenile court's order placed O.F. into the South Central Juvenile Drug Court Program for a period not to exceed two years from June 15, 2008. The order required that O.F. comply with and follow the rules and conditions set for him by the juvenile drug court.

[¶ 3] On July 17, 2008, O.F. violated curfew when he left his home at 2 a.m. Bismarck police cited O.F. for a curfew violation and returned him to his home. After returning home, O.F. killed his family's kitten. As a result of O.F.'s behavior, the juvenile drug court team recommended to the judicial referee that O.F. be sanctioned. The judicial referee sanctioned O.F. by requiring that he complete an additional six hours of community service.

[¶ 4] On September 16, 2008, an assistant Burleigh County state's attorney ("State") filed a petition in juvenile court alleging that O.F. had committed the delinquent act of mistreating animals in violation of N.D.C.C. § 36-21.1-02(1) and that he was an unruly child for violating curfew. O.F. filed a motion to dismiss the charges, claiming prosecution for the mistreating animal charge and the curfew violation charge, following the sanction imposed by the juvenile drug court for the same conduct, violated his double jeopardy rights. O.F. also filed a motion to prohibit his mother from testifying against him, claiming her testimony would violate the "child-parent privilege." O.F. did not object to the judicial referee and the assistant state's attorney participating in both his juvenile drug court team and the subsequent juvenile court proceedings concerning the delinquency charge. The judicial referee, and upon request for review, the juvenile court, denied both motions. The State eventually moved to dismiss the curfew violation charge, and O.F. conditionally pled guilty to the mistreating animal charge, reserving his right to appeal the denial of his motions under N.D.R.Crim.P. 11(a)(2). The judicial referee found O.F. had committed the delinquent act of mistreating an animal in violation of state law, dismissed O.F. from the juvenile drug court program, and transferred custody of O.F. from his parents to the Division of Juvenile Services for one year.

II

[¶ 5] O.F. argues double jeopardy barred the juvenile court from punishing him for committing the delinquent act of mistreating an animal after he had already been sanctioned with additional community service by the juvenile drug court based on the same underlying conduct.

[¶ 6] "Double jeopardy principles apply to juvenile court proceedings involving adjudication of delinquent acts." Interest of B.F., 2009 ND 53, ¶ 6, 764 N.W.2d 170. The prohibition against double jeopardy is found in the federal and state constitutions, as well as in state law. See U.S. Const. amend. V; N.D. Const art. I, § 12; N.D.C.C. § 29-01-07; State v. Linghor, 2004 ND 224, ¶ 19, 690 N.W.2d 201. "The constitutional guarantee against double jeopardy encompasses three separate protections: protection against a second prosecution for the same offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense." State v. Moos, 2008 ND 228, ¶ 13, 758 N.W.2d 674. Double jeopardy is a defense which may be waived, State v. Voigt, 2007 ND 100, ¶ 8, 734 N.W.2d 787, and a defendant claiming a double jeopardy violation bears the burden of proving each element of former jeopardy. See, e.g., United States v. Laguna-Estela, 394 F.3d 54, 56 (1st Cir.2005); State v. Cantrell, 223 Or.App. 9, 195 P.3d 451, 453 (2008); 21 Am.Jur.2d Criminal Law § 594 (2008); cf. State v. Lange, 497 N.W.2d 83, 85 (N.D.1993) (defendant has burden of establishing collateral estoppel branch of double jeopardy).

[¶ 7] This Court has not addressed whether a sanction imposed by a juvenile drug court for violation of its rules precludes, on double jeopardy grounds, further juvenile court delinquency proceedings based on the same conduct. Nor have we found a decision from another jurisdiction that specifically addresses the issue. See Brown v. State, 409 Md. 1, 971 A.2d 932, 936-37 (2009) (defendant failed to preserve on appeal argument that imposition of sentence for violating drug court rule followed by subsequent violation of probation for same act after drug court sanction had been served violated double jeopardy rule against multiple punishment for same offense).

[¶ 8] Our analysis begins with a brief overview of the juvenile drug court program. On June 24, 2008, O.F. was adjudicated a delinquent and unruly child based on conduct occurring before that date and was ordered to participate in the juvenile drug court program, a permissible option for disposition under N.D.C.C. § 27-20-31(7). "[I]ntense judicial and probation supervision" plays an integral part of the juvenile drug court program and the juvenile drug court may impose "sanctions and incentives" for compliance with program rules. N.D.C.C. § 27-20-02(14). Under the statutory scheme, the juvenile drug court program is a form of intensified probation with certain conditions imposed for a delinquent child to remain eligible for participation in the program. See Juvenile Drug Court Program Manual, North Dakota Juvenile Court System, at 19, 29-30 (Revised July 2007) (discussing individualized juvenile drug court accountability program plans and considerations for termination of participant from the program). The juvenile drug court and its duties of supervision over a participant is analogous to a district court and its duties of supervision over a probationer under N.D.C.C. § 12.1-32-07. We perceive no substantive difference between a sanction imposed on a participant by a juvenile drug court for violation of the program's rules and revocation of probation by a district court for a defendant's violation of a condition of probation.

[¶ 9] This Court has recognized that "`[p]robation revocation, like parole revocation, is not a stage of a criminal prosecution,'" State v. Olson, 2003 ND 23, ¶ 14, 656 N.W.2d 650 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)), and courts have long held "the fact that one act formed the basis for both [a] criminal conviction and [a] probation revocation does not violate double jeopardy." Merry v. State, 752 P.2d 472, 475 (Alaska Ct.App.1988). In State v. Gautier, 871 A.2d 347, 361 (R.I. 2005), the court explained [A] probation-revocation hearing is considered a continuation of the original prosecution for which probation was imposed — in which the sole purpose is to determine whether a criminal defendant has breached a condition of his existing probation, not to convict that individual of a new criminal offense. State v. Bourdeau, 448 A.2d 1247, 1248 (R.I. 1982). Consequently, it is black letter law that jeopardy does not attach to probation-revocation proceedings, because "`these proceedings are not designed to punish [criminal defendants] for violation of a criminal law.'" Hardy v. United States, 578 A.2d 178, 181 (D.C. 1990) (quoting Eighteenth Annual Review of Criminal Procedure, 77 Geo. L.J. 489, 880 (1989)). See [State v.] Chase, 588 A.2d [120], 122 [(R.I.1991)] ("a defendant is not twice placed in jeopardy for the same offense when the facts litigated at [a probation-revocation] hearing are later used to support a criminal prosecution").

See also, e.g., In re Coughlin, 16 Cal.3d 52, 127 Cal.Rptr. 337, 545 P.2d 249, 255 (1976) (probation revocation hearing was not a "criminal prosecution, nor was it intended to authorize criminal punishment" because "the sole consequence of revocation of probation is that the offender must commence to serve a term for an offense of which he previously was properly convicted"); Johnson v. United States, 763 A.2d 707, 711 (D.C.Ct.App.2000) ("Because probation revocation proceedings are not criminal prosecutions, ... and any consequent revocation does not punish the defendant for any crime charged subsequent to the imposition of probation, ... a probation revocation hearing cannot be the basis for a claim of either multiple prosecution or multiple punishment" (internal quotation and citation omitted)); State v. Quarles, 13 Kan.App.2d 51, 761 P.2d 317, 320 (1988) ("double jeopardy does not apply to probation revocation proceedings because probation revocation proceedings are not essentially criminal in nature"); Matter of Lucio F.T., 119 N.M. 76, 888 P.2d 958, 960 (Ct. App.1994) (double jeopardy does not apply to revocation of juvenile's probation because revocation "relates back to [the] original delinquent act and replaces the original disposition"); Commonwealth v. Johnson, 967 A.2d 1001, 1005 (Pa.Super.Ct.2009) ("Revocation of probation and resentencing does not implicate double jeopardy"); G. Blum, Annot., Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R. 5th 262, § 6 (1992); ...