In the Interest of R.A. v. R.A.

• Decision Date: 21 June 2011
• Docket Number: No. 20100343.,20100343.
• Citation: 799 N.W.2d 332,2011 ND 119
• Parties: In the Interest of R.A., a ChildState of North Dakota, Petitioner and Appelleev.R.A., said child, S.A., father of said child, T.A., mother of said child, RespondentsR.A., said child Appellant.
• Court: North Dakota Supreme Court

799 N.W.2d 332

2011 ND 119

In the Interest of R.A., a ChildState of North Dakota, Petitioner and Appellee

v.R.A., said child, S.A., father of said child, T.A., mother of said child, RespondentsR.A., said child Appellant.

No. 20100343.

Supreme Court of North Dakota.

June 21, 2011.

Haley Lorelle Wamstad (argued), Assistant State's Attorney, and Abby Siewert (appeared), third-year law student, Grand Forks, N.D., for petitioner and appellee.DeWayne Alan Johnston, Grand Forks, N.D., for respondent and appellant R.A. Interest of R.A.MARING, Justice.

[¶ 1] R.A. appeals from a juvenile court order transferring jurisdiction to district court under N.D.C.C. § 27–20–34(1)(b) and a district court order affirming the transfer. We conclude the juvenile court did not err in finding there was probable cause R.A. committed the offense of gross sexual imposition by threat, the juvenile court did not misinterpret or misapply the transfer statute, and R.A.'s confrontation rights were not violated. We affirm.

I

[¶ 2] In March 2010, a delinquency petition and notice of intent to transfer to district court was filed, alleging R.A. committed the offenses of gross sexual imposition in violation of N.D.C.C. § 12.1–20–03(1)(a) and (3)(a), terrorizing in violation of N.D.C.C. § 12.1–17–04, and harassment in violation of N.D.C.C. § 12.1–17–07(1)(a). The State alleged R.A. engaged in a sexual act with another juvenile, A.H., by compelling A.H. to submit by threat of imminent death or serious bodily injury. The State alleged R.A. sent A.H. text messages and written messages through the Internet containing threats and stating A.H. must perform sexual acts with R.A. or certain individuals would be physically harmed or killed. After a hearing on the transfer request, the judicial referee found there was probable cause to believe R.A. committed the offense of gross sexual imposition by force or by threat of imminent death, serious bodily injury, or kidnapping, and ordered the case be transferred to district court under N.D.C.C. § 27–20–34(1)(b).

[¶ 3] R.A. requested a district court judge review the judicial referee's findings and order, arguing the evidence did not support a finding of probable cause, the judicial referee misinterpreted or misapplied the transfer statute because the statute requires the threats be to the victim and not another person, and his confrontation rights were violated. The district court affirmed and adopted the judicial referee's findings and order.

II

[¶ 4] This Court's standard of review of a juvenile court's order is well established:

Under N.D.R.Civ.P. 52(a), this Court reviews a juvenile court's factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. 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 was induced by an erroneous view of the law. This Court reviews questions of law de novo.

Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644.

[¶ 5] The juvenile court found that probable cause exists to believe R.A. committed the offense of gross sexual imposition of a victim by force or by threat of imminent death, serious bodily injury, or kidnapping, and ordered the case transferred to district court under N.D.C.C. § 27–20–34. Section 27–20–34, N.D.C.C., governs the transfer of a case from a juvenile court to district court and provides:

1. After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances or resolutions of this state, 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:

....

b. The child was fourteen years of age or more at the time of the alleged conduct and the court determines that there is probable cause to believe the child committed the alleged delinquent act and the delinquent act involves the offense of ... gross sexual imposition or the attempted gross sexual imposition of a victim by force or by threat of imminent death, serious bodily injury, or kidnapping....

A person is guilty of gross sexual imposition if the person engages in a sexual act with another or causes another to engage in a sexual act by compelling the victim to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on any human being. N.D.C.C. § 12.1–20–03(1)(a). A sexual act is:

Sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any other portion of the human body and the penis, anus, or vulva; or the use of an object which comes in contact with the victim's anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, the penis and the anus, any other portion of the human body and the anus or vulva, or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight.

N.D.C.C. § 12.1–20–02(4).

A

[¶ 6] Under N.D.C.C. § 27–20–34(1)(b), a juvenile court shall transfer jurisdiction to the district court when the alleged delinquent act involves gross sexual imposition if the juvenile court determines there is probable cause to believe the juvenile committed the offense by force or by threat of imminent death, serious bodily injury, or kidnapping. R.A. argues the juvenile court erred in transferring jurisdiction to the district court because the State failed to establish probable cause and failed to present any evidence that he acted by force or that his conduct presented an imminent threat to A.H.

[¶ 7] Probable cause is a minimal burden of proof, and the State has met the burden of proving probable cause exists if “there is a definite probability based on substantial evidence the offense has been committed.” In re L.A.G., 1999 ND 219, ¶ 11, 602 N.W.2d 516. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The existence of probable cause is a question of law. Id.

[¶ 8] The State does not claim R.A. used physical force to compel A.H. to submit to sexual acts. The State claims and the juvenile court found R.A. made threats of imminent death or serious bodily injury to compel A.H. to engage in sexual acts. Section 27–20–34, N.D.C.C., does not define imminent; however, this Court has defined “imminent” in domestic violence cases for purposes of determining if there was fear of imminent physical harm. See, e.g., Lenton v. Lenton, 2010 ND 125, 784 N.W.2d 131; Wolt v. Wolt, 2010 ND 33, 778 N.W.2d 802; Ficklin v. Ficklin, 2006 ND 40, 710 N.W.2d 387. We have said “imminent” means “ ‘near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.’ ” Wolt, at ¶ 19 (quoting Ficklin, at ¶ 14).

[¶ 9] At the transfer hearing, A.H. testified about the events that lead to the allegations and copies of the text messages and other written messages she received were offered. A.H. testified she was in a relationship with R.A. from November 2008 until August 2009 and they remained friends after the relationship ended. A.H. testified she spoke with R.A. on the phone, received text messages from his cell phone number, and received other written messages from him through a social networking website, Facebook, almost every day between February 18, 2010, and February 28, 2010. A.H. testified R.A. claimed he was receiving threats from drug dealers who were attempting to get his uncle to help them traffic drugs. R.A. told A.H. the drug dealers were threatening to harm her as well and they could not go to the police or tell anyone about the threats because the drug dealers would find out and kill them. A.H. testified R.A. told her they had to comply with the drug dealers demands at all times or “[A.H.] you get to watch me and they are gonna take my dick and shove it up your pussy and take a knife and put it there too and turn it around and rotate it. Then they will just slit your throat but this is all of course after they rape you in front of me.” R.A. told A.H. the drug dealers came to his house on February 18 and injected him with sodium pentothal and sexually assaulted him. He told her the drugs made him very sick and he had to go to the hospital emergency room.

[¶ 10] A.H. testified R.A. told her the drug dealers demanded they change their Facebook information to reflect they were in a relationship on February 19. She testified that she did not comply with this demand fast enough and the drug dealers sent her a text message from R.A.'s cell phone claiming they were drugging R.A. because she did not comply with their demand. A.H. testified she received other messages she believed were from the drug dealers advising her they were watching her and would make sure she complied with their demands.

[¶ 11] There was evidence A.H. received a message from R.A.'s Facebook account on February 22, demanding A.H. be with R.A. sexually on February 23 and warning her they will kill R.A. if she does not comply. A.H. testified she invited R.A. to her house on February 23, R.A. gave her a hickey and told her it was one of his demands, R.A. tried to have sex with her, there was penetration, and he claimed it was one of the demands. A.H. testified she believed their actions satisfied the drug dealers' demands.

[¶ 12] A.H. testified she was getting ready to leave for a trip to New York with a group of friends on February 24, but before she left town R.A. called her and told her the drug dealers were demanding she come to his house and kiss him before she left town. A.H. testified she was not able to go to R.A.'s...