Ryan J. Younggren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellant.
Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellee.
VANDE WALLE, Chief Justice.
[¶ 1] The State of North Dakota appealed from a district court order dismissing charges against Korsiba Arot for lack of jurisdiction. We affirm.
[¶ 2] Arot was charged in district court with three counts of gross sexual imposition for incidents that occurred in the summer of 2011, the latest of which occurred on August 24, 2011. Arot moved to dismiss the criminal charges arguing the court lacked jurisdiction to hear the case because Arot was not eighteen at the time of the incidents. Attached to the motion was an affidavit from Arot's father. The affidavit stated that Arot and his family are refugees who immigrated from Sudan in 2004. Arot was born in southern Sudan in the village of Juba. When they arrived in the country, the family had no documentation of their birth dates. Each member of the family was assigned an arbitrary birth date. In Arot's case, it is January 1, 1993. The affidavit also stated Arot's birthday was in late summer of 1993, and his father knew it was late summer because it was the dry season. Arot also submitted an exhibit showing dry season in Sudan begins in September in the north
and moves south so it covers the whole country by the end of December. The State resisted the motion, and a hearing was held.
[¶ 3] At the hearing, the State presented three witnesses. First, the State called Dawn Peters, Arot's juvenile probation officer. She testified to several documents from the juvenile court on which Arot's birthday is listed as " 1/1/1993." These documents were filled out by either Arot or one of his parents. She also testified on cross-examination that many of her immigrant clients from Sudan, Ethiopia, and Somalia have a January 1 birthday.
[¶ 4] The State also called Vanessa Boehm, Arot's high school counselor. She testified to several documents filled out by Arot or his parents where his birthday is listed as " 1/1/1993." Additionally, Boehm testified that she held a " senior conference" with Arot in late September 2011. His parents did not attend. She stated that if he had not been eighteen, the meeting would not have been held without his parents. She testified that Arot told her he was eighteen, so she could conduct the meeting without his parents. Boehm also testified that many students who immigrated from places like Sudan have a January 1 birthday, and that as far as she knew, the birthday was arbitrarily assigned.
[¶ 5] The State's final witness was Christopher Novak, a manager from Mexican Village, where Arot worked. Arot was hired on April 17, 2011. Novak testified to several exhibits, including a job application, a copy of Arot's driver's license, and an I-9 form, where Arot wrote that his birthday was " 1/1/1993." Novak testified that Arot was not required to be eighteen to work at Mexican Village. Novak did not testify that Arot claimed to be eighteen. Novak also testified that in his experience it was common for immigrants to have a January 1 birthday.
[¶ 6] Arot's father was available for cross-examination on his affidavit, but the State declined to cross-examine him. The district court found the State failed to prove by the preponderance of the evidence that Arot was eighteen at the time of the incidents. The charges were dismissed.
[¶ 7] " The juvenile court has exclusive original jurisdiction of ... [p]roceedings in which a child is alleged to be delinquent, unruly, or deprived." N.D.C.C. § 27-20-03(1)(a). " ‘ Child’ means an individual who is ... [u]nder the age of twenty years with respect to a delinquent act committed while under the age of eighteen years." N.D.C.C. § 27-20-02(4)(b). " When jurisdictional facts are disputed, the district court's decision on subject matter jurisdiction necessarily involves findings of fact and conclusions of law. Therefore, when disputed facts surround a challenge to the district court's subject matter jurisdiction, we are presented with a mixed question of law and fact." Schirado v. Foote,2010 ND 136, ¶ 7, 785 N.W.2d 235. " Under this standard, we review the ‘ questions of law subject to the de novo standard of review [and the] findings of fact subject to the clearly erroneous standard of review.’ " Id. (quoting Wigginton v. Wigginton, 2005 ND 31, ¶ 13, 692 N.W.2d 108). In this case, there are ...