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In re H.K.

February 17, 2010

IN THE INTEREST OF H.K., A CHILD
BRADLEY CRUFF, BARNES COUNTY STATES ATTORNEY, PETITIONER AND APPELLEE
v.
H.K., CHILD, D.K., MOTHER, AND W.K., FATHER, RESPONDENTS AND APPELLANTS



Appeal from the Juvenile Court of Barnes County, Southeast Judicial District, the Honorable John T. Paulson, Judge.

The opinion of the court was delivered by: Kapsner, Justice

AFFIRMED.

[¶1] H.K. appeals from a juvenile court order finding she is a delinquent child for committing disorderly conduct. H.K. argues the juvenile court erred by denying her motion to dismiss, admitting evidence beyond the scope of the facts alleged in the petition, and finding she committed disorderly conduct. We hold the juvenile court did not err by denying H.K.'s motion to dismiss because the petition sufficiently alleged facts to defend the charge of disorderly conduct and the First Amendment did not prohibit the juvenile court from considering her statements as evidence. Further, we determine the juvenile court's admission of evidence beyond the scope of the petition did not affect H.K.'s substantial rights and the juvenile court was not clearly erroneous to find H.K. committed disorderly conduct. We affirm the juvenile court's order.

I.

[¶2] On March 26, 2009, the Barnes County state's attorney filed a petition alleging H.K. committed the delinquent act of disorderly conduct in violation of N.D.C.C. § 12.1-31-01. H.K. moved to dismiss the petition, arguing the First Amendment prohibited the juvenile court from considering her statements as evidence of criminal conduct, and the petition therefore failed to allege she committed acts sufficient to meet the statutory definition of "disorderly conduct." The juvenile court declined to rule on the motion prior to the hearing on the petition.

[¶3] At the hearing on April 27, 2009, T.L., a teenage girl of African- American ancestry, testified H.K. and two other girls followed her into a bathroom during a dance at a teen center in Valley City. T.L. stated H.K. and the girls "started yelling at me and calling me a nigger and telling me I don't own this town, that they own this town, and they don't want niggers in their town and that I need to watch out and they just kind of ran off giggling." After this incident, T.L. left the dance and went to a local restaurant to talk to a friend who was working there at the time. Shortly after T.L. arrived, H.K. and the two other girls also entered the restaurant and joined a group of teenagers who were there before T.L. T.L. testified she overheard the group saying "nigger" and making other disparaging comments about her while she was talking to her friend. When H.K. and her companions left the restaurant, T.L. testified H.K. said "[b]ye nigger" to T.L. as she walked by. T.L.'s friend also testified regarding the conduct of H.K. and the group of teenagers at the restaurant. She said the group "were calling [T.L.] names like she's worthless, she dropped out, she's a nigger, she doesn't belong in this town, she should just move out, why is she in this town, and stuff like that." Lastly, T.L. testified H.K. made an obscene gesture while driving by her several weeks after the February incidents. H.K.'s counsel objected to the testimony regarding the obscene gesture, arguing it was beyond the scope of the petition.

[¶4] At the close of the hearing, H.K.'s counsel argued the State was attempting to criminalize the use of the word "nigger" in violation of H.K.'s rights under the First Amendment. The juvenile court found H.K. was a delinquent child for committing disorderly conduct. H.K. now appeals, arguing the juvenile court should have granted her motion to dismiss because the State's petition failed to allege she committed acts sufficient to meet the definition of "disorderly conduct" in N.D.C.C. § 12.1-31-01 and the First Amendment prohibited the use of her statements as evidence of criminal conduct. H.K. also argues this Court should overturn the juvenile court's decision because the juvenile court admitted evidence beyond the scope of the petition and because the juvenile court was clearly erroneous to find she committed disorderly conduct.

II.

[¶5] H.K. argues the juvenile court should have granted her motion to dismiss because the petition failed to allege she committed acts meeting the statutory definition of "disorderly conduct" and the First Amendment prohibited the use of her statements as evidence of criminal conduct. On appeal from a juvenile court decision, we hear the case "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." N.D.C.C. § 27-20-56.

A.

[¶6] H.K. argues the juvenile court erred by refusing to grant her motion to dismiss because the petition failed to allege she committed acts meeting the statutory definition of "disorderly conduct." Section 12.1-31-01(1), N.D.C.C., provides the statutory basis for the crime of disorderly conduct. It states:

An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual's behavior, the individual:

a. Engages in fighting, or in violent, tumultuous, or threatening behavior;

e. Persistently follows a person in or about a public place or places;

g. Creates a hazardous, physically offensive, or seriously alarming condition by any act that ...


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