Dawson v. Guerrero

552 N.W.2d 317, 1996 N.D. LEXIS 163
CourtNorth Dakota Supreme Court
DecidedJune 27, 1996
DocketCriminal No. 960008
StatusPublished
Cited by1 cases

This text of 552 N.W.2d 317 (Dawson v. Guerrero) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawson v. Guerrero, 552 N.W.2d 317, 1996 N.D. LEXIS 163 (N.D. 1996).

Opinion

MARING, Justice.

J.A.G., a juvenile, has appealed1 an order transferring prosecution of criminal charges against him from juvenile court to the district court under § 27-20-34(l)(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.

[319]*319Under § 27-20-34(l)(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(l)(e), 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(l)(e), 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;
“(e) 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.... ”

[320]*320Under § 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., 498 N.W.2d 680, 683-84 (N.D.1992).

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(l)(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. Torcía, Wharton’s Criminal Law § 726 (14th ed.1981).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Interest of JAG
552 N.W.2d 317 (North Dakota Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
552 N.W.2d 317, 1996 N.D. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-guerrero-nd-1996.