In re J.K.

• Court: North Dakota Supreme Court
• Writing for the Court: Crothers
• Citation: In re J.K., 763 N.W.2d 507, 2009 ND 46 (N.D. 2009)
• Decision Date: 02 April 2009
• Docket Number: No. 20080180.,20080180.
• Parties: In the Interest of J.K., a child. Eugene Molbert, Petitioner and Appellee v. J.K., a child, C.M., his mother, Respondents and Appellants and D.K., his father, Respondent.

763 N.W.2d 507

2009 ND 46

In the Interest of J.K., a child Eugene Molbert, Petitioner and Appellee v. J.K., a child, C.M., his mother, Respondents and Appellants and D.K., his father, Respondent.

No. 20080180.

Supreme Court of North Dakota.

April 2, 2009.

T.L. Secrest, State's Attorney, Hettinger, ND, for petitioner and appellee.

Robert A. Keogh, Keogh Law Office, Dickinson, ND, for respondents and appellants.

CROTHERS, Justice.

[¶ 1] J.K. appeals the juvenile court's order adjudicating him a delinquent child and placing him with the North Dakota Division of Juvenile Services until January 2009. The delinquency adjudication resulted from a finding by the juvenile court that J.K. had committed theft of property, a Class C felony. We affirm, concluding the juvenile court's finding J.K. committed the theft is not clearly erroneous.

I

[¶ 2] On May 4, 2008, a dirt bike was stolen off the back of the owner's pickup. Later that evening, M.H. admitted to stealing the dirt bike and claimed J.K. also was involved in the theft. J.K. denied being involved in the theft and stated he was helping M.H. move the dirt bike off of his father's property because he did not want to be blamed for stealing the bike.

[¶ 3] On May 12, 2008, a petition was filed with the juvenile court, alleging J.K. committed the delinquent act of theft of property. On July 2, 2008, a juvenile hearing was held to determine whether J.K. committed the theft making him a delinquent child. Numerous witnesses testified at trial about the events surrounding the theft. Alan Timm testified that on May 4, 2008, around 9 p.m. while watering his horses, he heard a dirt bike coming down the highway. Timm stated he saw M.H.'s car closely following the dirt bike because the dirt bike did not have a headlight. After recognizing the bike because it belonged to a friend, Timm said he called his friend to find out why he was riding his dirt bike in the dark. Timm's friend stated he was not riding his dirt bike, and it was at that point his friend realized someone had stolen his dirt bike off of the back of his pickup.

[¶ 4] Timm stated after learning his friend's dirt bike was stolen he followed M.H.'s car and the dirt bike until they turned into J.K.'s father's farm. Timm said he waited at the approach of the farm while M.H.'s car and the dirt bike were driven into the farm. While Timm was following the dirt bike and M.H.'s car, Timm stated he called M.H.'s mother informing her that he believed M.H. was involved in stealing his friend's dirt bike. After speaking with Timm, M.H.'s mother said she went looking for M.H. and ended up sitting at the approach of J.K.'s father's farm with Timm.

[¶ 5] At this time, J.K.'s father's girlfriend, C.A., was home at the farm; she testified when she heard a loud vehicle, she looked out the kitchen window and saw a car going up the hill to J.K.'s father's farmstead. C.A. said she then drove over to the farmstead. When she arrived, she found M.H. standing by his car and J.K. coming out of the Quonset. At this point, C.A. said the Quonset doors were open only a couple of feet and she did not go into the Quonset, but did help J.K. close the doors. C.A. stated she did not ask the boys what they were doing at the Quonset and did not notice a dirt bike in the area. According to M.H.'s testimony, the boys were at the Quonset because they were moving the dirt bike to a different location because they believed Timm knew they had taken the bike.

[¶ 6] Both Timm and M.H.'s mother said that when the boys left the farm they drove at an excessive speed and that both of them followed the boys for a little while. M.H.'s mother stated she stopped following the boys, but told Timm he should continue to follow in case something should happen to them. Timm testified he continued to follow the boys and watched while M.H.'s car spun out of control and went into the ditch. After observing the accident, Timm said he pulled over and found M.H. and J.K. in the car. Timm testified he put the boys in his vehicle and called M.H.'s father to meet him to pick up the boys. M.H.'s father said he met Timm picked up the boys and took the boys to the hospital to ensure they were okay.

[¶ 7] After hearing of the accident, Officer Sabot testified he went to the hospital to interview the boys about the stolen dirt bike. Officer Sabot stated he talked to M.H. first. Initially, M.H. told Officer Sabot that he would give him a written statement, but that he did not want to talk to him. In M.H.'s written statement, he admitted he and another person stole the dirt bike. However, M.H. refused to reveal the identity of the other individual. Eventually, M.H. spoke with Officer Sabot, telling him where the dirt bike was hidden. While M.H. was still at the hospital, Officer Sabot asked M.H. to call Officer Chapman, the officer investigating the stolen dirt bike, and to inform him the dirt bike was located in an old wooden building at J.K.'s father's farm. Officer Chapman testified when he arrived at the wooden building, prior to finding the dirt bike, he knew the dirt bike had to be nearby because of the strong smell of gasoline.

[¶ 8] After interviewing M.H., Officer Sabot talked to J.K. Officer Sabot said J.K. denied taking the dirt bike and stated he was helping M.H. move the bike off of J.K.'s father's farm because he did not want to be blamed for stealing it. Officer Sabot stated that while he was interviewing J.K., he noticed J.K.'s pants smelled of gasoline.

[¶ 9] After the boys were released from the hospital, Officer Molbert took M.H. to the sheriff's office and then to Sunrise Youth Bureau. Officer Molbert testified that on the way to Sunrise Youth Bureau, M.H. revealed J.K. was the other individual involved in stealing the dirt bike. According to M.H.'s testimony, he revealed J.K.'s identity because he realized while being handcuffed in the back of the police car that he did not want his life to be like this.

[¶ 10] J.K. testified and denied stealing the dirt bike. J.K. said on the night the dirt bike was stolen, he was at the skate park skateboarding with a couple of friends when M.H. pulled up in his car. J.K. stated his friends left when M.H. got out of his car. While they were at the skate park, M.H. told J.K. that he and another individual stole a dirt bike and hid it in a barn at J.K.'s father's farm. J.K. said he told M.H. they needed to get the dirt bike and return it to the person they took it from.

[¶ 11] J.K. testified he and M.H. left in M.H.'s car and went to his father's farm to get the dirt bike. J.K. said they drove up to the Quonset because M.H. told him the dirt bike was in a "barn," but when they got to the Quonset, M.H. told him the dirt bike was not there. J.K. said when he was coming out of the Quonset, C.A. drove up. J.K. testified C.A. helped him close the Quonset doors which were open only about two feet. J.K. said C.A. left without asking them what they were doing. After C.A. left, J.K. said they drove to the highway and waited there for a while before driving to the old wooden building on the old farmstead because they did not want C.A. to get suspicious if she saw a car drive to the old farm since nobody ever drives over there. J.K. testified they waited on the highway approach for about five minutes and then proceeded to drive slowly to the old farm. J.K. said on the way to the old farm, M.H. received but did not answer three phone calls, two from his mother and one from a friend. After M.H.'s mother called twice, J.K. said he asked M.H. if anyone knew he took the dirt bike and M.H. told him that he thought someone did. J.K. testified he became angry with M.H. and told him they were going back to town because he did not want any part of this. J.K. said they were on their way back to town when they got into the car accident. J.K. stated he remembers waking up in Timm's vehicle and then having M.H.'s father take him to the hospital. J.K. said he spoke to the officer at the hospital and told him he was not involved in the theft.

[¶ 12] At the close of trial, the juvenile court found that the State had met its burden of proof beyond a reasonable doubt that J.K. violated N.D.C.C. § 12.1-23-02 because he knowingly took or exercised unauthorized control over the property of another with intent to deprive the owner. J.K. was adjudicated a delinquent child and ordered into the care, custody and control of the North Dakota Division of Juvenile Services for placement in a suitable foster care or group setting until January 1, 2009.

II

[¶ 13] Prior to March 1, 2004, we reviewed factual findings in juvenile matters under a procedure similar to the former trial de novo, with substantial weight given to the trial court's findings because of its superior position to decide questions of demeanor and credibility. Interest of D.Q., 2002 ND 188, ¶ 9, 653 N.W.2d 713. Effective March 1, 2004, N.D.R.Civ.P. 52(a) was amended to provide that "[f]indings of fact ... in juvenile matters ... shall not be set aside [on appeal] unless clearly erroneous." Since N.D.R.Civ.P. 52(a) was amended to exclude de novo review in juvenile cases, those cases applying the procedure similar to trial de novo for review of juvenile matters are superceded.

[¶ 14] "A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding is induced by an erroneous view of the law." Interest of R.P., 2008 ND 39, ¶ 7, 745 N.W.2d 642. "We review questions of law de novo." Interest of K.H., 2006 ND 156, ¶ 7, 718 N.W.2d 575.

[¶ 15] J.K. allegedly committed the delinquent act of theft of property in violation of N.D.C.C. § 12.1-23-02, a Class C felony. Specifically, J.K. was alleged to have taken a dirt bike off the back of the owner's pickup. Section 27-20-29(2), N.D.C.C., requires the petitioner to prove beyond a reasonable doubt that J.K....