State v. Azure

520 N.W.2d 574, 1994 N.D. LEXIS 184, 1994 WL 458614

• Court: North Dakota Supreme Court
• Decided: August 24, 1994
• Docket: Cr. Nos. 930339, 930340
• Status: Published

Opinions

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 § 14-10-06¹ 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 § 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 §§ 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. § 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 age³ to enter a liquor establishment, or to purchase, attempt to purchase, consume, or possess alcoholic beverages. § 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. § 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.

1 . Section 14-10-06, NDCC, provides:

"Unlawful to encourage or contribute to the deprivation or delinquency of minor — Penalty.

“1. Any person who by any act willfully encourages, causes, or contributes to the delinquency or deprivation of any minor is guilty of a class A misdemeanor."

2 . In 1989 the legislature amended section 27-20-02(10)(e), NDCC, by adding the underscored language:

"10. ‘Unruly child' means a child who:

* * * * * *

e. Has committed an offense in violation of section 39-08-18 or purchased, attempted to purchase, possessed, or consumed alcoholic beverages; ...”

3 . Section 27-20-02(3) does exclude from the definition of "delinquent act” offenses that are applicable only to children. But note, section 5-01-08 refers not only to minors, but also to young adults between the ages of eighteen and twenty-one, thereby removing the offenses defined in 5-01-08 from the exception for offenses that apply only to children.

4 . It is unclear from the statutory language and the legislative history whether the legislature intended that minors who purchase, attempt to purchase, possess or consume alcoholic beverages are to be treated only as unruly children, or if the legislative intent was to permit their treatment either as unruly or as delinquent children, at the option of the petitioning authority. The question need not be answered for the purposes of this opinion, because under either interpretation the defendants here have contributed to the commission of delinquent acts, but the issue is important to all involved in juvenile court. Prior to 1989 it was clear that behavior which was merely unruly could not result in placement at the State Industrial School; only delinquent behavior could be the basis for such a disposition. Since the 1989 amendment to the definition of unruly child, that clear distinction no longer exists. A clarification of intent in the next legislative session would benefit all who are involved in juvenile court matters.