In Interest of JD

494 N.W.2d 160
CourtNorth Dakota Supreme Court
DecidedDecember 22, 1992
DocketCr. No. 920171
StatusPublished

This text of 494 N.W.2d 160 (In Interest of JD) 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
In Interest of JD, 494 N.W.2d 160 (N.D. 1992).

Opinion

494 N.W.2d 160 (1992)

In the Interest of J.D.
Damon ANDERSON, Petitioner and Appellee,
v.
J.D., (Minor), Respondent and Appellant,
S.N., (Mother), M.D., (Father), Respondents.

Cr. No. 920171.

Supreme Court of North Dakota.

December 22, 1992.

*161 Damon E. Anderson (argued), Asst. State's Atty., Grand Forks, for petitioner and appellee.

Kerry S. Rosenquist (argued), of Arnason Law Office, Grand Forks, for respondent and appellant.

LEVINE, Justice.

J.D., a juvenile [hereinafter Dale][1] appeals from a juvenile court order confirming a referee's determination that he committed the delinquent act of unauthorized use of a motor vehicle in violation of Section 12.1-23-06, N.D.C.C.[2] Because we conclude that the State failed to prove that Dale exercised control over the car, we reverse the juvenile court order.

On the evening of October 24, 1991, Dale and two other juveniles, J.C. [John] and M.J. [Michael] gathered at Michael's house. John had been using a 1975 Plymouth Duster which his father, Roger, owned. At approximately 10:00 p.m. Roger arrived at Michael's house and, in the presence of the three boys, Roger told John that he could not use the car. Roger then drove the car back to his home.

The three boys stayed at Michael's home that night. John testified that sometime between 5:00 and 6:00 a.m. on October 25th, "we were talking to two [juvenile] girls and ... [Michael] wanted to go get them and I said, you know, yeah sure." Although Dale was present during the telephone call, there was no evidence that he participated in either the call or the subsequent decision to take Roger's car and pick up the two girls. Dale, not wanting to stay alone at Michael's house, accompanied John and Michael part way but then waited about one block from Roger's house while John picked up the car. After taking the car, John picked up Michael and Dale and the two girls and the group went to McDonald's to eat. Afterward, one of the girls drove the other four juveniles back to Michael's house. John, feeling sick, went into Michael's house, while the other four remained in the car. Michael then went to look for John. According to Dale, Michael returned to the car and informed the passengers that John said they could use the car. One of the girls then drove the other three young people around town in Roger's car. At no time that morning, did Dale drive Roger's car; instead, he occupied a back seat.

At about 8:30 a.m. on October 25, Roger noticed that his car was gone and he went to Michael's house to look for it. Not finding his car at Michael's house, he was on his way home when he saw his car being driven by the juvenile girl accompanied by three juvenile passengers. John was not in the car; Roger signaled the driver to stop the car. Dale testified that he told the female driver to stop; however, she refused and continued to Michael's house. Roger followed them and summoned the police.

The State petitioned to have Dale declared a delinquent child, alleging that he committed the delinquent act of unauthorized use of a motor vehicle. After a hearing, a referee made an oral finding that Dale exercised control over the car with knowledge that Roger had not consented. *162 The juvenile court confirmed the referee's written findings. Dale appealed, contending that the evidence was insufficient to establish that he committed the delinquent act of unauthorized use of a motor vehicle.

Although a juvenile court's findings are entitled to appreciable weight, we are not bound by those findings and we independently review the evidence in a manner similar to a trial de novo. Huff v. K.P., 302 N.W.2d 779 (N.D.1981); Section 27-20-56, N.D.C.C.

Section 27-20-29(2), N.D.C.C., requires the State to prove beyond a reasonable doubt that Dale committed the delinquent act of unauthorized use of a motor vehicle. Under Section 12.1-23-06(1), N.D.C.C., a person is guilty of unauthorized use of a motor vehicle if, knowing the owner has not consented, the person takes, operates, or exercises control over the vehicle. Those statutes require the State to prove two elements beyond a reasonable doubt: (1) that Dale took, operated, or exercised control over Roger's car, and (2) that Dale knew that Roger had not consented.

Dale first argues that the State did not prove beyond a reasonable doubt that he knew Roger had not consented to John's use of the car. Dale asserts that he believed that John had asked for and received permission from his father to take the car on the morning of October 25.

Section 12.1-02-02(1)(b), N.D.C.C., provides that a person engages in conduct knowingly if "when he engages in the conduct, he knows or has a firm belief, unaccompanied by substantial doubt, that he is doing so, whether or not it is his purpose to do so." Knowledge need not be absolute but merely a firm belief unaccompanied by a substantial doubt. State v. Kaufman, 310 N.W.2d 709 (N.D.1981). Knowledge is a question of fact and may be established by circumstantial evidence. Id.

Roger testified that he told John, in Dale's presence, that John could not use the car. According to John, when he went to Roger's house to get the car, he told Dale and Michael to wait one block away "in case [Roger] gets up or something and start[s] yelling and stuff." Although Dale testified that John said he was going to talk to Roger before taking the car, John testified that he did not tell Dale that he was going to ask his father for permission before taking the car. Roger also testified that when he saw the juvenile girl driving his car the next morning, Dale ducked down in the back seat. Reviewing this evidence de novo, while giving appreciable weight to the juvenile court's findings, we believe it establishes that Dale had a firm belief, unaccompanied by a substantial doubt, that Roger had not consented to the use of his car. We conclude that the State proved the element of knowledge.

Dale next argues that the State failed to prove beyond a reasonable doubt that he took, operated, or exercised control over the car. On this point, we agree.

In denying Dale's motion to dismiss after the State rested, the referee agreed that Dale did not "take" or "operate" the car. But, after hearing all the evidence, the referee orally found that Dale exercised control over the car:

"when he was in the car pursuant to the testimony that we heard from was he was exercising control over that particular vehicle. At that particular time, you are—if you're a passenger with somebody else in a car under certain circumstances like this, you're part of the exercising control over that particular vehicle. There are many, many types of examples that we could give people being together on things. You're all together in it, you're all involved, if you're all caught, you're all chargeable and so on and so forth and all kinds of things like that. Possession—just like possession of stolen property—if you have access to it, constructive possession, if it's sitting out here we're—we're all in possession of something that we can have access to. And you were in the car and you have access to it and you were riding around in it...."

Thus, the referee equated Dale's presence in the car with the exercise of control *163 and made a written finding that Dale committed the delinquent act of unauthorized use of a motor vehicle.

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Bluebook (online)
494 N.W.2d 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-jd-nd-1992.