State v. Azure, Cr. N

• Citation: 520 N.W.2d 574
• Decision Date: 24 August 1994
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Andrew AZURE, Defendant and Appellee. STATE of North Dakota, Plaintiff and Appellant, v. George FALCON, Defendant and Appellee. os. 930339, 930340.
• Court: United States State Supreme Court of North Dakota

Page 574

520 N.W.2d 574

STATE of North Dakota, Plaintiff and Appellant, v. Andrew AZURE, Defendant and Appellee.

STATE of North Dakota, Plaintiff and Appellant, v. George FALCON, Defendant and Appellee.

Cr. Nos. 930339, 930340.

Supreme Court of North Dakota.

Aug. 24, 1994.

Mary K. O'Donnell, State's Atty. (argued), Rolla, for plaintiff and appellant.

Thomas K. Schoppert (argued), Schoppert Law Firm, Minot, for defendant and appellee Andrew Azure.

Carl O. Flagstad, Jr. (argued), Minot, for defendant and appellee George Falcon.

NEUMANN, Justice.

The State appeals from orders dismissing complaints charging Andrew Azure with two counts of contributing to the delinquency of a minor, and charging George Falcon with two counts of accomplice to contributing to the delinquency of a minor. We reverse the county court orders, and remand for further proceedings.

The State alleged that Azure and Falcon accompanied two juveniles into a bar, and Azure proceeded to purchase alcoholic beverages for both juveniles. Azure was charged with two counts of willfully encouraging or contributing to the delinquency of a minor in violation of NDCC Sec. 14-10-06 ¹ by purchasing and giving alcoholic beverages to the minors. Falcon was charged with two counts of accomplice to contributing to the delinquency of a minor by accompanying the minors into the bar, where they consumed alcohol. See NDCC Sec. 12.1-03-01 (accomplice statute).

Both defendants moved to dismiss the complaints for failure to state a criminal offense as a matter of law. N.D.R.Crim.P. Rule 12. The county court granted the motions. Ruling from the bench, the county court ordered that both complaints be dismissed. The court reasoned that the offense of contributing to the delinquency of a minor is defined by the Uniform Juvenile Court Act's definition of a delinquent child. The court further reasoned that, because a minor who purchases, possesses or consumes alcohol has been defined by the Juvenile Court Act as an unruly child, ² such behavior cannot be delinquent behavior, and contributing to such behavior, therefore, cannot be contributing to delinquency. The court concluded that the legislature had decriminalized such acts. The court also reasoned that by implication the legislature had decriminalized the act of a minor entering a liquor establishment. The State appeals from the orders dismissing with prejudice.

The issues on appeal focus on our interpretation of NDCC Secs. 5-01-08, 14-10-06, and 27-20-02. Azure and Falcon were charged with encouraging or contributing to the delinquency of a minor, and accomplice to encouraging or contributing to the delinquency of a minor. Generally, a delinquent act is defined as any act designated a crime under the law. Sec. 27-20-02(3). The only exceptions are traffic offenses and offenses applicable only to children. Id. It is a criminal act for a person under twenty-one years of age ³ to enter a liquor establishment, or to purchase, attempt to purchase, consume, or possess alcoholic beverages. Sec. 5-01-08 (class B misdemeanor). A juvenile who enters a liquor establishment and consumes liquor is therefore committing violations which the legislature has defined as "delinquent acts."

Generally, children who commit delinquent acts and are in need of treatment or rehabilitation are "delinquent children"; however, the legislature has made some exceptions. Children who commit certain specified delinquent acts and are in need of treatment or rehabilitation have been classified as "unruly children." For example, minors who purchase, attempt to purchase, possess, or consume alcoholic beverages can be treated as "unruly children" in the juvenile system. Sec. 27-20-02(10)(e) (as amended in 1989). ⁴

The county court misinterpreted our statutes when it held that it was not a delinquent act for a minor to enter a liquor establishment, or purchase, attempt to purchase, consume, or possess alcoholic beverages. The fact that the legislature has chosen to define as unruly a child who has committed these delinquent acts is not determinative of whether the acts themselves are classified as delinquent.

For these reasons, we reverse the county court's decision to dismiss the charges against Azure and Falcon and remand for further proceedings.

VANDE WALLE, C.J., and MESCHKE, J., concur.

LEVINE and SANDSTROM, JJ., specially concur with opinions.

LEVINE, Justice, concurring specially.

Section 27-20-02, NDCC, establishes three categories of children over whom the juvenile court may exercise jurisdiction: "deprived children," "unruly children" and "delinquent children." In Interest of C.S., 382 N.W.2d 381, 383 (N.D.1986). The permissible dispositions for each category are different. See NDCC Sec. 27-20-30 -32. In particular, section 27-20-32, NDCC, authorizes the juvenile court to make any disposition of a child adjudicated unruly which is "authorized for a delinquent child except commitment to the state industrial school." (Emphasis added.) The "unruly child" category is used to limit the disposition of children who have committed offenses which indicate a need for rehabilitation or treatment, but may not require institutionalization. C.S., supra at 384.

The legislature has thus created a scheme in which certain acts by minors, whether criminal or noncriminal, delinquent or not, make those minors "unruly" children, in order to limit the method of disposition by the juvenile court by prohibiting commitment to the state industrial school. The acts of purchasing, attempting to purchase, and consuming alcohol were added to the "unruly child" category by amendment in 1989. 1989 N.D. Laws ch. 384 Sec. 1. The legislative history strongly suggests that this addition to the unruly child definition was intended to restrict the juvenile court's disposition of a child who is intoxicated in public because she is "unruly but may not be delinquent." H. Jud. Comm. Minutes (March 6, 1989). The legislature did not intend to decriminalize the act of purchasing or consuming alcohol, but rather intended to qualify the methods of disposition of a child found in violation of this provision. This interpretation is consistent with the fact that purchasing, attempting to purchase and consuming alcoholic beverages by a person under twenty-one years of age remains a criminal act under NDCC Sec. 5-01-09.

I agree therefore that the orders of dismissal were wrong. I therefore concur in the opinion of the majority.

SANDSTROM, Justice, concurring specially.

I write separately to clarify the legislative history.

Prior to the 1989 legislature, neither the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20; nor the Alcoholic Beverages Law, N.D.C.C. title 5; prohibited a child, or other person under twenty-one years of age, from consuming alcoholic beverages. N.D.C.C. Sec. 5-01-08, with certain exceptions, prohibited a person under twenty-one years of age from "purchasing, attempting to purchase, or being in possession of alcoholic beverages, or furnishing money to any person for such purchase, or entering any licensed premises where alcoholic beverages are being sold or displayed...."

In the 1989 legislative session, S.B. 2406, relating to the definition of an unruly child, was enacted.

The legislative history reflects:

"SENATOR WAYNE STENEHJEM, sponsor of the bill, introduced it and stated it was requested by the Juvenile Court personnel in Grand Forks. Consumption is not covered in the Code language, only purchase. New language will cover the consumption aspect and will cover a juvenile found to be under the influence of alcoholic beverages in public.... Senator Stenehjem stated that 'delinquent' is criminal in nature and unruly is not. An intoxicated child drunk in public is unruly, but may not be delinquent. He indicated he debated about where to...