J.A.G., In Interest of

• Citation: 552 N.W.2d 317
• Decision Date: 27 June 1996
• Docket Number: No. 960008,960008
• Parties: In the Interest of J.A.G., A Child. Stephen DAWSON, Petitioner and Appellee, v. John GUERRERO, Martha Castanon, and J.A.G., Respondents and Appellants. Criminal
• Court: North Dakota Supreme Court

Page 317

552 N.W.2d 317

In the Interest of J.A.G., A Child.

Stephen DAWSON, Petitioner and Appellee, v. John GUERRERO, Martha Castanon, and J.A.G., Respondents and Appellants.

Criminal No. 960008.

Supreme Court of North Dakota.

June 27, 1996.

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

Brian W. Nelson (argued), of Nelson Law Office, Fargo, and Robin L. Olson (appearance), of Olson Law Office, Grand Forks, for respondents and appellants.

MARING, Justice.

J.A.G., a juvenile, has appealed ¹ an order transferring prosecution of criminal charges against him from juvenile court to the district court under § 27-20-34(1)(c), N.D.C.C. We affirm.

On the evening of November 15, 1995, sixteen-year-old J.A.G. was riding in a car with five other juveniles. J.A.G. and the other juveniles were arrested after it was alleged one of them killed Cheryl Tendeland that evening with a sawed-off shotgun while she was sitting in a car in West Fargo, North Dakota.

Under § 27-20-34(1)(c), N.D.C.C., the State moved to transfer prosecution from juvenile court to the district court for trial of J.A.G. as an adult, and filed a second amended petition alleging in part:

"Count 1: That the juvenile is alleged to be delinquent in that he was involved in committing the unlawful act of CONSPIRACY TO COMMIT ARMED ROBBERY in violation of Section 12.1-06-04 and 12.1-22-01, N.D.C.C. in that on or about the evening of November 15, 1995, the above-named juvenile ... agreed with other juveniles to commit robbery and any one or more of such persons did an overt act to effect an objective of the conspiracy including but not limited to: 1) travelled together in an automobile to the city of West Fargo, ND, on the late evening of November 15, 1995; 2) possessed a sawed off shotgun and ammunition for same; 3) located and observed a potential victim of the robbery in the city of West Fargo; 4) left the confines of said automobile and walked towards the intended victims while armed with a sawed off shotgun; 5) fired a firearm during the course of said offense; 6) aided others and facilitated the escape from the scene of this offense.

* * * * * *

"Count 2: That the juvenile is alleged to be delinquent in that he was involved in committing the unlawful act of CRIMINAL STREET GANG CRIME, in violation of Sections 12.1-06.2-02 and 12.1-03-01 of the North Dakota Century Code as amended, in that on or during the evening of November 15, 1995, the above-named juvenile ... committed or attempted to commit conspiracy to commit robbery at the direction of or in association with a criminal street gang as charged in Count One above, with intent to promote, further, or assist in the affairs of a criminal gang;...."

The juvenile court transferred prosecution of Count 1 to the district court under § 27-20-34(1)(c), N.D.C.C., and transferred prosecution of Count 2 to the district court under § 27-20-34(4), N.D.C.C. J.A.G. appealed.

Section 27-20-34(1)(c), N.D.C.C., authorizes transferring the prosecution of some offenses from juvenile court to the district court, 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.

* * * * * *

"4. The transfer terminates the jurisdiction of the juvenile court over the child with respect to the delinquent acts alleged in the petition...."

Under § 27-20-56, N.D.C.C., this court hears an appeal under the Uniform Juvenile Court Act "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." "We reexamine the evidence in a manner similar to the former procedure of trial de novo." In Interest of M.D.N., 493 N.W.2d 680, 683-84 (N.D.l992).

I.

J.A.G. did not receive the second amended petition, containing Count 2, which was not in the original petition, until the day of the hearing and contends that Count 2 should not have been addressed because he did not have adequate notice. At the beginning of the transfer hearing, J.A.G.'s counsel asked "that this be continued to allow us proper time to prepare." The juvenile court reserved ruling at that time. After the hearing, and after the juvenile court ordered transfer of Count 1, the court ruled that, under § 27-20-34(4), N.D.C.C., the transfer of Count 1 "terminates the jurisdiction of the Juvenile Court over this Respondent with respect to any remaining delinquent acts alleged in the Petition." The juvenile court, therefore, transferred Count 2, as well as Count 1. J.A.G. did not provide us with any citations to relevant authority or any supportive reasoning. We are, therefore, not persuaded that the juvenile court erred in concluding that its transfer of Count 1 required the transfer of Count 2 as well.

In this case, Count 2 was intertwined with Count 1. Both involved the same facts and events. Evidence proving one also tended to prove the other. We express no view on the correctness of the juvenile court's determination that transfer of Count 1 terminates the juvenile court's jurisdiction "with respect to any remaining delinquent acts alleged in the Petition." Without proper notice and proof on each count of a multi-count petition, transfer of prosecution on one count might not require transfer of "remaining delinquent acts alleged" in the other counts, if the counts are unrelated.

II.

J.A.G. contends that the juvenile court erred in finding reasonable grounds under § 27-20-34(1)(c)(4)(a), N.D.C.C., to believe that he committed the alleged delinquent act of conspiracy to commit armed robbery. Section 12.1-06-04(1), N.D.C.C., 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 any one 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."

"An agreement or understanding may be shown by the conduct of the parties." 4 Charles E. Torcia, Wharton's Criminal Law § 726 (14th ed.1981). 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." State v. Rambousek, 479 N.W.2d 832, 835 (N.D.1992).

The standard of "reasonable grounds" in § 27-20-34(1)(c)(4), N.D.C.C., "is equivalent to 'probable cause.' " In Interest of T.M., 512 N.W.2d 441, 443 (N.D.1994). "Probable cause [and, therefore, reasonable grounds] is a minimal burden of proof," which is met if "there is a definite probability based on substantial evidence." In Interest of M.D.N., supra, 493 N.W.2d at 684. " '[S]ubstantial evidence' " is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Application of Bank of Rhame, 231 N.W.2d 801, 811 (N.D.1975), quoting Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131, 140 (1966).

Detective Gregory Warren testified: 1) Cheryl Tendeland died of a shotgun wound to the head while sitting in a car at about 10:35 p.m. on November 15, 1995; 2) Pat Tendeland gave him the license number of a car; 3) the car was owned by J.A.G.'s mother; and 4) Moorhead police stopped the car at about 11:42 p.m. on November 15, 1995, removed a sawed-off shotgun and shells from the car, and took the juveniles in it into custody.

Warren also testified that J.G. told him: 1) J.G. and the other juveniles left J.A.G.'s home on November 15, 1995, they went driving and they took the shotgun with them; 2) the shotgun, which had been stolen, "belonged to the group or the gang," and was stored at J.A.G.'s residence; 3) when they saw the Tendeland vehicle, R.M. stopped the car and B.G. and M.C. got out; 4) when B.G. got out of the car, "he was either going to steal the car or rob the people." 5) B.G. told R.M. to "Pull the car up ahead, pull ahead;" 6) B.G. "then steps off the curb, walks towards the vehicle, points the gun, and there is a blast. Shortly after the blast from the shotgun, the Tendeland vehicle goes racing by;" 7) after the shotgun was fired, J.A.G. said: "Don't leave them. Wait for them;" 8) B.G. and M.C. got back in the car; 9) J.A.G. was present when B.G. left J.A.G.'s residence with the shotgun to commit an armed robbery on November 14; 10) B.G. brought the loot from the November 14 robbery back to J.A.G.'s residence; and 11) after the November 14 robbery, B.G., J.G., and J.A.G. again went out on November 14 in J.A.G.'s mother's car, looking for other people to rob.

Warren's testimony was evidence "a reasonable mind might accept as adequate to support a conclusion," Application...