Wheeler, In Interest of, No. 2--57681

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard by MOORE; REYNOLDSON
Citation229 N.W.2d 241
PartiesIn the Interest of Phillip James WHEELER, Appellant.
Decision Date21 May 1975
Docket NumberNo. 2--57681

Page 241

229 N.W.2d 241
In the Interest of Phillip James WHEELER, Appellant.
No. 2--57681.
Supreme Court of Iowa.
May 21, 1975.

Page 242

Spellman, Spellman, Spellman & Spellman, Perry, for appellant.

Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Sp. Asst. Atty. Gen., Theodore R. Boecker, Asst. Atty. Gen., and Gregory Hulse, Asst. County Atty., for appellee.

Heard by MOORE, C.J., and LeGRAND, REES, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

This appeal is from a district court judgment finding Phillip James Wheeler, age 15, a delinquent and committing him to the Iowa Training School for Boys, Eldora, Iowa. We affirm.

Phillip's juvenile problems became apparent when he was seven years of age. His father is in prison. His mother's parental rights were severed by court order and he was placed in legal custody of Dallas county department of social welfare. Thereafter Phillip was in a number of foster homes, YMCA Boy's Home, Johnston, Iowa, and Boy's Town at Omaha, Nebraska. Testimony indicated Phillip ran off many times from YMCA Boy's Home and at least once from Boy's Town.

August 20, 1971, a petition alleging Phillip's delinquency was filed. The proceeding came before the court and was continued on several subsequent occasions. An answer was filed October 15, 1973, raising constitutional issues. Meanwhile the county department became discouraged and asked to be relieved of custody. The juvenile court then placed custody in the fifth judicial district juvenile probation office with authority for that office to place Phillip in his mother's home. The matter was again continued.

August 27, 1974, an amended petition was filed. It was alleged Phillip was a delinquent child under § 232.2(13), The Code, 1973. Specific allegations asserted he 1) had violated State law (§ 232.2(13)(a)) by breaking and entering with intent to commit a public offense (§ 708.8) and 2) had habitually deported himself in a manner injurious to himself or others (§ 232.2(13)(d)) by breaking and entering and committing lascivious acts with a minor. An amended answer denied all these allegations, incorporated the prior answer, and raised additional constitutional questions.

Upon pre-hearing motion for adjudication of law points the constitutional objections were overruled. At hearing evidence was introduced to show Phillip and another juvenile had broken into a swimming pool building kand taken candy. The boys had been drinking beer. The 'lascivious act' was proved by a mother who testified she had found Phillip in his mother's apartment engaged in sexual intercourse with her 11-year-old daughter.

A 'Family Record' compiled by the juvenile probation office was admitted into evidence, as was testimony of the Dallas county sheriff concerning jail cell damage which Phillip may have caused just prior to the hearing.

The appeal to this court seeks review of the following issues: 1) Is § 232.31, The Code, unconstitutional on its face and as applied because it allows determination of delinquency on 'clear and convincing' evidence? 2) Did trial court err by admitting evidence of acts other than those specified in the amended petition? 3) Is § 232.2(13)(d), The Code, unconstitutionally vague or overbroad on its face or as applied?

I. Section 232.31, The Code, provides, Inter alia:

'The court's finding with respect to neglect, dependency, and delinquency shall be based upon clear and convincing evidence under the rules applicable to the trial of civil cases * * *.'

Phillip asserts when a finding of delinquency is grounded upon commission of an act which would constitute a crime if committed by an adult it is constitutionally impermissible to apply the 'clear and convincing' standard of proof rather than the requirement of proof beyond a reasonable doubt.

Page 243

We do not agree with the State's contention this ground was not raised below.

The State now concedes when the basis of a delinquency charge is an alleged public offense due process requires proof beyond a reasonable doubt. Appellee's brief, pp. 2--3; In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368, 377--378 (1970); In re Henderson, 199 N.W.2d 111, 124 (Iowa 1972) (concurring opinion); see In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 538 (1967).

Assuming, although its order does not so disclose, the juvenile court here used the lesser standard, reversal is not required if in our De novo review the evidence satisfies the reasonable doubt standard and requires delinquency adjudication. In re Henderson, supra at 124; In re Geiger, 184 Neb. 581, 584, 169 N.W.2d 431, 433 (1969); In re Dahlberg, 184 Neb. 303, 305, 167 N.W.2d 190, 192 (1969).

We hold evidence of the breaking and entering charge convinces beyond a reasonable doubt. Each element of the crime was established. The only 'sufficiency' challenge made by Phillip relates to his specific intent in light of some evidence of drinking. See State v. Sill, 199 N.W.2d 47, 49 (Iowa 1972). Baker, the boy who was with Phillip, testified he did not know how much beer Phillip drank but thought he was intoxicated. But he also testified Phillip told him he wanted to get some candy and then entered the building...

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9 practice notes
  • Interest of Thompson, No. 3--58727
    • United States
    • United States State Supreme Court of Iowa
    • April 14, 1976
    ...5. Thus if in our De novo review admissible evidence satisfies the reasonable doubt standard we need not reverse. In Interest of Wheeler, 229 N.W.2d 241, 243--244 (Iowa Page 5 II. Validity of the confession. Thompson launches a two-pronged attack on the validity of his confession. He first ......
  • First Judicial Dist. Dept. of Correctional Services v. Iowa Civil Rights Commission, No. 65774
    • United States
    • United States State Supreme Court of Iowa
    • January 20, 1982
    ...where improper evidence admitted at trial is inapplicable in de novo review of delinquency adjudication); In Interest of Wheeler, 229 N.W.2d 241, 243 (Iowa 1975) (reversal not required where trial court applied erroneous standard of proof when review was de novo and proper standard could be......
  • Meek, In Interest of, No. 2--58065
    • United States
    • United States State Supreme Court of Iowa
    • December 17, 1975
    ...will be reversed unless the record shows affirmatively that it was afterward discarded.' However, we held in In Interest of Wheeler, 229 N.W.2d 241, 244 (Iowa 1975), that the Bellew rule is inapplicable in a proceedings under chapter 232, The Code, where our review is De novo, permitting us......
  • Dugan, In Interest of, No. 68390
    • United States
    • United States State Supreme Court of Iowa
    • May 18, 1983
    ...of fact was correct and supported by the record. Dugan appeals. We review the findings of fact de novo. In the Interest of Wheeler, 229 N.W.2d 241, 243 (Iowa I. "Rehearing." The initial issue before us is a matter of statutory construction. Dugan urges us to construe section 231.3 as requir......
  • Request a trial to view additional results
9 cases
  • Interest of Thompson, No. 3--58727
    • United States
    • United States State Supreme Court of Iowa
    • April 14, 1976
    ...5. Thus if in our De novo review admissible evidence satisfies the reasonable doubt standard we need not reverse. In Interest of Wheeler, 229 N.W.2d 241, 243--244 (Iowa Page 5 II. Validity of the confession. Thompson launches a two-pronged attack on the validity of his confession. He first ......
  • First Judicial Dist. Dept. of Correctional Services v. Iowa Civil Rights Commission, No. 65774
    • United States
    • United States State Supreme Court of Iowa
    • January 20, 1982
    ...where improper evidence admitted at trial is inapplicable in de novo review of delinquency adjudication); In Interest of Wheeler, 229 N.W.2d 241, 243 (Iowa 1975) (reversal not required where trial court applied erroneous standard of proof when review was de novo and proper standard could be......
  • Meek, In Interest of, No. 2--58065
    • United States
    • United States State Supreme Court of Iowa
    • December 17, 1975
    ...will be reversed unless the record shows affirmatively that it was afterward discarded.' However, we held in In Interest of Wheeler, 229 N.W.2d 241, 244 (Iowa 1975), that the Bellew rule is inapplicable in a proceedings under chapter 232, The Code, where our review is De novo, permitting us......
  • Dugan, In Interest of, No. 68390
    • United States
    • United States State Supreme Court of Iowa
    • May 18, 1983
    ...of fact was correct and supported by the record. Dugan appeals. We review the findings of fact de novo. In the Interest of Wheeler, 229 N.W.2d 241, 243 (Iowa I. "Rehearing." The initial issue before us is a matter of statutory construction. Dugan urges us to construe section 231.3 as requir......
  • Request a trial to view additional results

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