State v. Anderson, Cr. N

• Decision Date: 12 March 1981
• Docket Number: Cr. N
• Citation: 303 N.W.2d 98
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Karen ANDERSON, Defendant and Appellant. o. 752.
• Court: North Dakota Supreme Court

Page 98

303 N.W.2d 98

STATE of North Dakota, Plaintiff and Appellee, v. Karen ANDERSON, Defendant and Appellant.

Cr. No. 752.

Supreme Court of North Dakota.

March 12, 1981.

Tom P. Slorby, State's Atty., Minot, for plaintiff and appellee; argued by Richard C. Wilkes, Asst. State's Atty., Minot.

McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellant; argued by Richard H. McGee II, Minot.

PEDERSON, Justice.

This is an appeal from a district court's revocation of probation. We affirm.

On February 25, 1980, Karen Kay Anderson was convicted for theft of property, a Class C felony, § 12.1-23-02, NDCC. The court deferred imposition of sentence for one year and placed Anderson on probation subject to the court's continuing jurisdiction ¹ and certain conditions, the pertinent of which were:

"A. The defendant shall not purchase, possess, or consume any alcoholic beverage or controlled substance except as prescribed by a licensed physician.

"E. The defendant shall not commit another offense during the period for which the sentence remains subject to revocation.

"G. The defendant shall support his dependents and meet other family responsibilities."

On September 16, 1980, the state's attorney drew an affidavit in which he alleged that Anderson had violated terms of the probation. That same day the district court scheduled a revocation hearing for October 3. A supplemental affidavit, in which additional probation violations were alleged, was submitted by the state's attorney on September 18. At the conclusion of the hearing on October 3, the district court revoked the deferred imposition of sentence and Anderson received a one-year term at the North Dakota State Penitentiary.

The state's attorney, in the affidavits and at the hearing, attempted to establish numerous instances of behavior showing that Anderson had not observed the conditions of her probation. The court, however, focused on only some of these in reaching its decision. ²

Noting that the hearsay rule does not apply at a probation revocation hearing, Rule 1101(d)(3), NDREv, the court heard evidence of a March 5, 1980, conversation between Anderson's daughter and an undercover narcotics agent. The agent had purchased some cocaine from the daughter and he asked why the substance was unusually powdery. She replied, ³ "I think my Mom ran it through a machine. They have got this sifting machine." Later in the same conversation the daughter told the agent that her mother "just gets me what (drugs) I want." In September, 1980, the daughter was adjudicated a delinquent for engaging in drug trafficking, and at the revocation hearing judicial notice of the girl's file was taken. The court stated that: "The mere fact her daughter is delinquent is not considered, but the manner of delinquency certainly is."

The court noted another incident involving sale of drugs. An undercover agent, on May 5, 1980, went to Anderson's residence "to purchase speed." He found only Anderson's daughter at home, but was able to speak with Anderson over the phone after the daughter placed a call. He stated that he recognized Anderson's voice and he asked to buy "speed." Anderson said, "Okay," and then spoke to her daughter again. After the phone conversation, the daughter left the room and returned with 20 white pills, for which the agent paid $5.00. The pills were later determined to be not a controlled substance, but ephedrine, an asthma medicine. The court concluded, however, that the transaction indicated conspiracy or an attempt involving the daughter to deliver a controlled substance.

Finally, the court considered the fact that Anderson's daughter had a rather poor attendance record at school. During the 1979-80 school year, the girl missed fully 87 days of the required 180. No clear reason appears in the transcript for these continual absences.

Basing its decision primarily on these three things, the court determined that violations of the probation arrangement had been shown by a preponderance of the evidence. Rule 32(f)(2)(iii), NDRCrimP. Specifically, it found Anderson had not observed conditions A, E and G: A, by sifting, and thus possessing, cocaine; E, by possessing cocaine and attempting or conspiring to sell speed; and G, by involving her daughter in drug dealing and failing to see that she attended school. The court stated further that the same evidence indicated Anderson had committed child abuse, a Class C felony under § 14-09-22, NDCC.

On appeal Anderson argues that the State failed to designate specifically the charges for which it sought revocation and thereby denied her due process right to notice. This denial was supposedly consummated when the court mentioned that the evidence showed commission of child abuse and criminal attempt or conspiracy. Notice to Anderson regarding the revocation came in the form of the state's attorney's two above-mentioned affidavits. ⁴ Facts and violations of specific probation conditions are alleged in the affidavits, but no criminal offenses as such are indicated as grounds for revocation. Anderson contends the court did in fact base its ruling on a finding of child abuse, attempt and conspiracy, and that the ruling must be overturned because she received no notice of these charges.

Before the court can terminate Anderson's probation it must conduct a hearing. Rule 32(f), NDRCrimP. The rule requires that "notice of the alleged violation" be given the probationer in advance of the hearing. We have stated that " 'the notice should state what (probation) violations have been alleged.' " McGuire v. Warden of State Farm, Etc., 229 N.W.2d 211, 219 (N.D.1975), quoting Morrissey v. Brewer, 408 U.S. 471, 487, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484, 497 (1972); see, Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 33 L.Ed.2d 656, 664 (1973). The notice must be of "sufficient specificity to enable the defendant and his counsel to know and understand the nature of the charge against him and to prepare for a hearing on the charge." McGuire, supra, 229 N.W.2d at 219.

The excerpts from the affidavits contained in note 4 reveal that Anderson had notice both of the probation terms the state's attorney believed were violated and of the facts constituting the violations. While Anderson did not receive notice of which specific...