Matter of ALJ

836 P.2d 307, 1992 Wyo. LEXIS 83, 1992 WL 145085

Opinions

MACY, Justice.

Appellant AU, a minor, appeals from the trial court’s finding that he committed a delinquent act by recklessly endangering others and from the court’s order of disposition pertaining to his probation conditions.

We affirm in part and vacate in part.

Appellant raises the following issues:

ISSUE I

Is a person guilty of the crime of reckless[] endangering if he points an unloaded weapon at another? In other words, does the reckless endangering statute require that the actor place another in an actual state of danger?

ISSUE II

Are conditions J, L, N, and P of the appellant’s probationary terms improper? More specifically, could the court order: A) searches of the appellant’s person and abode without requiring a reasonable suspicion that a probationary term had been violated[ ], B) that appellant’s driver’s license was automatically revoked should he violate any of the terms of probation[ ], and C) that he pay the costs of his court appointed attorney without first inquiring into his ability to pay?

ISSUE III

Could the court place the appellant on three years of probation when it could only have sentenced an adult convicted of the same offense to one year of probation?

During the evening of November 22, 1989, Appellant attended a party held in a gravel pit near Greybull, Wyoming. An estimated forty to fifty people attended this party, most of whom were juveniles. Many of the partygoers were consuming alcohol. Appellant brought a .25 caliber semi-automatic pistol to this party, and, on four separate occasions, he pointed the gun at individuals who were in attendance. The police were not informed of Appellant’s actions until several days after the party was held when the mother of one of the four victims told her son to notify the police.

The Big Horn County prosecutor filed a petition, alleging that Appellant committed a delinquent act by recklessly endangering the four individuals at the party in violation of Wyo.Stat. § 6-2-504(b) (1988). On June 7, 1990, a jury found the allegations in the petition were true. The jury was not instructed to make a finding regarding whether the gun was loaded. The district judge sentenced Appellant to an indeterminate period at the Wyoming Boys’ School, but he suspended imposition of the sentence and placed Appellant on probation for three years.

Appellant’s probationary conditions, among others, were that (1) Appellant would submit to random chemical testing for the presence of alcohol; (2) Appellant’s driving privileges would be temporarily revoked with further revocation to be automatic if Appellant violated any probation condition or was arrested or ticketed for a traffic violation; (8) Appellant’s parents would cooperate in residential checks at the probation officer’s discretion; and (4) Appellant would reimburse the Wyoming public defender for the cost of his defense.

Reckless Endangerment

Appellant contends that an actor can be guilty of reckless endangerment only if he actually puts the victim in danger. Wyo.Stat. § 6-2-504 (1988) provides in pertinent part-

ía) A person is guilty of reckless endangering if he recklessly engages in conduct which places another person in danger of death or serious bodily injury.

(b) Any person who knowingly points a firearm at or in the direction of another, whether or not the person believes the firearm is loaded, is guilty of reckless endangering unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another.

Appellant’s position is that a person is not guilty of reckless endangering under this statute when he points an unloaded weapon at someone, “whether or not the person believes the firearm is loaded.” (Emphasis added.) Appellant’s argument is that, to give effect to the word “believes,” the legislature must have meant that anyone who points a loaded gun at another is guilty, whether or not he believes the gun is loaded. According to Appellant’s interpretation, the jury should have been instructed to make a finding regarding whether or not the gun was loaded.

Appellant relies upon cases from other jurisdictions to bolster his argument that, to he guilty, the actor must place the victim in actual danger. Like Wyoming has done, these other states have adopted, at least in part, the Model Penal Code’s definition of reckless endangering, arguably making their statutory interpretations relevant.¹ However, none of the jurisdictions relied upon has adopted the same reckless endangering statute as Wyoming has adopted.

Appellant places emphasis on State v. McLaren, 135 Vt. 291, 376 A.2d 34 (1977). Vermont’s reckless endangering statute, like the Model Penal Code, provides, “ ‘Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.’” McLaren, 376 A.2d at 36. In McLaren, the court found that the presumption of danger could not be construed to make irrelevant the actual dangerous nature of the firearm itself. Id. McLaren is not persuasive in interpreting Wyoming’s statute.²

Our rules of statutory interpretation are well established:

“[A]II portions of an act must be read in pari materia, and every word, clause and sentence of it must be considered so that no part will be inoperative or superfluous,” Hamlin v. Transcon Lines, Wyo., 701 P.2d 1139, 1142 (1985), and a statute should not be construed to render any portion of it meaningless, or in a manner producing absurd results.

Story v. State, 755 P.2d 228, 231 (Wyo.1988), after remand, 788 P.2d 617, cert. denied, - U.S. -, 111 S.Ct. 106, 112 L.Ed.2d 76 (1990) (citations omitted), quoted in GN v. State, 816 P.2d 1282, 1283 (Wyo.1991). We also recognize that ambiguity in a criminal statute should be resolved in favor of lenity. Story, 755 P.2d at 231.

We interpret § 6-2-504(b) to mean that, whenever an actor knowingly points a firearm at another, whether the firearm is loaded or not, he is guilty of reckless endangering, provided the firearm was not pointed for defensive purposes. The second clause of § 6-2-504(b) merely makes irrelevant the actor’s belief as to the loaded or unloaded nature of the gun. While it is true that an ambiguous criminal statute should be resolved in favor of lenity, the rule is applicable only to the extent that an ambiguity exists. Wyoming’s reckless endangering statute is not ambiguous.

Appellant also argues that it would be an odd construction to say a person is guilty of reckless endangering when no one has actually been endangered by the person’s actions. To the contrary, an unloaded gun pointed at another creates a dangerous situation. The unknown and frequently violent reactions of persons having guns pointed at them, unloadéd or not, create an obvious danger. Many people are killed each year with guns which the handlers knew were unloaded. State v. Meier, 422 N.W.2d 381, 385 (N.D.1988). Nothing is odd in protecting against the potential harm which exists any time a person points a gun at another.

Probation Conditions

Appellant claims that the probation condition requiring him to submit to random chemical testing for the presence of alcohol violates his right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution and article 1, section 4 of the Wyoming Constitution. Appellant bases his contention on Pena v. State, 792 P.2d 1352 (Wyo.1990), which involved an adult parolee. In Pena, we found that, while parolees have lesser Fourth Amendment protections than law abiding citizens have, a parole officer, before he makes a search, must still have a “reasonable suspicion” that the parolee committed a parole violation. 792 P.2d at 1357-58. On the basis of the holding in Pena, Appellant argues that, since urinalysis is a search, his probation condition should have included a requirement that the probation officer must reasonably suspect that a probation violation exists before he orders a test.³

Appellant’s argument necessarily assumes that: (a) urinalysis is a search; (b) Fourth Amendment protections apply to juveniles; and (c) adult and juvenile probationers are entitled to the same Fourth Amendment protections. We agree with Appellant’s first assumption and adopt the Supreme Court’s finding in Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), that the testing of urine is a search. For this case, we can assume, without deciding, that Fourth Amendment protections apply to juveniles in adjudicatory proceedings.⁴ However, the Fourth Amendment protections which apply to adult probationers do not necessarily apply to juvenile probationers. The disposi-tional phase of juvenile proceedings requires broad judicial discretion to accommodate the unique rehabilitative needs of juveniles. We hold that it is within the court’s discretion to allow a probation officer to search a juvenile without reasonably suspecting that a probation violation exists.

Other courts have recognized that minors’ constitutional rights available in the adjudicatory stage are not necessarily applicable in the dispositional stage. The Supreme Court has found that in adjudicatory hearings minors are entitled to those rights which comport with due process and fair treatment under the Fourteenth Amendment to the United States Constitution. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). However, the Supreme Court in In re Gault, recognizing the uniqueness of the disposition stage, specifically limited its finding to the adjudicatory stage. 387 U.S. at 13, 31 n. 48, 87 S.Ct. at 1436, 1445 n. 31.

This difference between the adjudicative and dispositional phases reflects the broad discretion judges need for making an appropriate disposition. Wyoming requires that, when entering an order of disposition, the court must do what is best suited for the public safety, the preservation of families, and the physical, mental, and moral welfare of the child. See Wyo.Stat. § 14-6-229(a) (Supp.1991). To' fulfill this mandate and to address the rehabilitative needs of juveniles, the court must have flexibility when it is formulating the probation conditions.

Wyo.Stat. § 14-6-229(f) (Supp.1990)⁵ sets forth what terms and conditions a court may impose in an order of disposition. That section provides in pertinent part:

(f) As a part of any order of disposition and the terms and conditions thereof, the court may:

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(vi) Impose any demands, requirements, limitations, restrictions or restraints on the child, and do all things with regard to the child that his parents might reasonably and lawfully do under similar circumstances;

(vii) As a condition of permitting the child to live in the home, order the child ... into counseling, treatment or another program designed to rectify problems which contributed to the adjudication.

Both of these provisions are broad enough to encompass chemical testing. In this case; alcohol was being consumed at the party. Appellant’s background showed that he had previously been involved in an alcohol-related incident. The testing-for-alcohol condition was designed to avoid any future problems involving alcohol. We believe that, under these circumstances, the chemical-testing condition was appropriate.

Appellant next contests probation condition (n) which states, “Said minor’s parents shall cooperate in all respects with said minor’s probation officer and allow residential checks at the discretion of said officer.” As he did in his argument concerning the chemical-testing condition, Appellant argues that the probation officer must reasonably suspect that a probation violation exists before he searches the minor’s residence.⁶ Our constitutional analysis regarding chemical testing is applicable to the probation condition requiring residential checks. Appellant’s Fourth Amendment rights were not violated by the court allowing the probation officer to make residential checks without reasonably suspecting the existence of a probation violation. The condition was clearly within the court’s discretion. Residential checks are an appropriate probation condition because they allow the probation officer to verify that the minor is not consuming alcohol or otherwise violating his probation conditions.

Appellant’s probation condition (1) states:

Said minor’s driving privileges are hereby revoked. Said minor shall not drive a motor vehicle until January 20, 1991. Thereafter, if said minor is arrested or ticketed for a traffic violation or violates any condition contained herein, then said minor’s driving privilege shall be automatically deemed revoked by virtue of this Court order.

Appellant contends that this condition is beyond the court’s statutory authority. Pursuant to Wyo.Stat. § 14-6-229(f)(v) (Supp.1991), the court may “[rjestrict or restrain the child’s driving privileges for a period of time the court deems appropriate, and if necessary to enforce the restrictions the court may take possession of the child’s driver’s license.” Appellant objects to the court using the word “revoke” as opposed to using the words “restrict or restrain.” In the context of condition (1), we see no discernible difference between “revoking” and “restraining or restricting” the child’s driving privileges. By revoking the child’s driving privileges, the court is not revoking the child’s driver’s license.

Appellant’s probation condition (p) requires him to reimburse the public defender for the cost of his defense. Appellant claims that the trial court must inquire into his ability to reimburse the public defender before it can order reimbursement. We agree.

The State argues that the trial judge had sufficient knowledge to conclude that Appellant had the capacity to reimburse the public defender. The basis for this claim is that, at the dispositional hearing, Appellant’s father testified to Appellant’s steady work history. This evidence was not sufficient to qualify as an inquiry into Appellant’s ability to pay.

Wyo.Stat. § 14-6-235(c) (1986) allows the court to order the child to pay for the cost of his defense; however, the statute does not specifically require the court to inquire into the child’s ability to pay. As was said in Schiefer v. State, 774 P.2d 133 (Wyo.1989) (Urbigkit, J., concurring in part and dissenting in part):

The application of restitution and cost repayment statutes without a judicial finding of ability to pay are statutes designed as debt collecting devices masquerading as penal laws and contravene the constitutional prohibition against imprisonment for debt.

774 P.2d at 143. We hold that the court must inquire and find that the juvenile has the ability to pay before the court can order reimbursement of attorney fees, and we vacate that probation condition requiring Appellant to reimburse the public defender.

Equal Protection

Appellant argues that his three-year probation term violates the Equal Protection Clauses of the Wyoming and United States Constitutions. He relies upon Hicklin v. State, 535 P.2d 743 (Wyo.1975), for the proposition that a probation term cannot exceed the maximum imprisonment term. Since the maximum sentence for reckless endangerment is one year, Appellant claims that his three-year probation term denies him equal protection under the law.

The right to equal protection under the law “ ‘mandates that all persons similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed.’” Small v. State, 689 P.2d 420, 425 (Wyo.1984), cert. denied, 469 U.S. 1224, 105 S.Ct. 1215, 84 L.Ed.2d 356 (1985) (quoting State v. Freitas, 61 Haw. 262, 602 P.2d 914, 922 (1979)). When claiming an equal protection violation, the claimant must initially show that the classification in question treats similarly situated persons unequally. State v. A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989). Adults placed on probation after they have been criminally prosecuted are not similarly situated to juveniles placed on probation after they have been adjudicated delinquents; therefore, Appellant’s argument must fail.

By enacting a juvenile code separate from the criminal code, Wyoming’s legislature has recognized that juveniles and adults are not similarly situated. Juvenile proceedings are designed to rehabilitate and protect the juvenile, not to punish him. These goals of rehabilitation and protection are reflected throughout the juvenile code. Proceedings in juvenile court are equitable as opposed to being criminal. Juveniles are not convicted; they are merely adjudicated delinquents. By treating juveniles more gently than it treats adults, the legislature is compensating for juveniles’ inherent lack of experience and maturity.

Since juvenile probations and adult pro-bations are not similarly situated, Appellant suffered no denial of his right to equal protection under the law.

Affirmed in part and vacated in part.

URBIGKIT, C.J., filed an opinion concurring in part and dissenting in part.

THOMAS, J., filed a concurring and dissenting opinion.

CARDINE, J., filed a dissenting opinion in which THOMAS, J., joined.

1 . Model Penal Code § 211.2 (1962) provides:

A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.

2 . Other cases cited by Appellant include a series of Pennsylvania cases which require the prosecution to demonstrate that actual danger existed. In the leading Pennsylvania case requiring the existence of actual danger, Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), the court analyzed the Pennsylvania statute which stated, “'A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.’" 395 A.2d at 1340. The court went on to point out that Pennsylvania had not adopted the second sentence of the Model Penal Code definition which stated, " ‘Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.”’ Id. at 1341. This second sentence is almost identical to § 6-2-504(b). The Pennsylvania court found that, had Pennsylvania adopted the second sentence, criminal liability would be imposed for pointing an unloaded weapon. Id. The Pennsylvania court’s analysis merely reinforces our interpretation.

3 . Appellant also cites Pena for the proposition that probationers and parolees share the same Fourth Amendment protections. 792 P.2d at 1357 n. 10.

4 . According to Samuel M. Davis, Rights of Juveniles § 3.6 (2d ed. 1991), all states which have considered the applicability of the Fourth Amendment to juvenile proceedings have found that the Fourth Amendment is applicable.

5 . Section 14-6-229(f)(vii) was amended by 1991 Wyo.Sess.Laws ch. 196, § 1 effective March 4, 1991.

6 . We interpret Appellant's argument as merely going to whether the probation officer must reasonably suspect that a probation violation exists before he searches Appellant's residence. Appellant has no standing to contest a violation of his parents' constitutional rights. Johnson v. Schrader, 502 P.2d 371 (Wyo.1972), on reh’g, 507 P.2d 814 (Wyo.1973).