IN THE INTEREST OF Z.S., Minor Child, STATE OF IOWA
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IN THE SUPREME COURT OF IOWA
No. 08–2025
Filed December 18, 2009
IN THE INTEREST OF Z.S.,
Minor Child,
STATE OF IOWA,
Appellant.
Appeal from the Iowa District Court for Polk County, Joe E. Smith,
Judge.
The State appeals the dismissal of a delinquency petition after the
juvenile court found the minor child did not commit two counts of
assault with intent to commit sexual abuse. AFFIRMED.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant
Attorney General, John Sarcone, County Attorney, Michelle Chenoweth,
Assistant County Attorney, for appellant.
Todd E. Babich and Kodi A. Petersen, Babich, Goldman, Cashatt &
Renzo, P.C., Des Moines, for appellee minor child.
2
BAKER, Justice.
The State appeals the dismissal of a delinquency petition after the
juvenile court found the minor child, Z.S., did not commit two counts of
assault with intent to commit sexual abuse. Before appealing, the State
moved for the juvenile court to expand its findings of fact and
conclusions of law to determine whether Z.S. committed assault, a
lesser-included offense, and the court refused, stating it had no authority
to revisit its previous order. We are asked to determine: (1) whether the
juvenile court had an affirmative duty to address any lesser-included
offenses even in the absence of a request from the State and (2) whether
the juvenile court had authority, if not a duty, to expand its findings and
conclusions of law when it neglected to address a lesser-included offense
that received evidentiary support or whether double jeopardy prevented
the juvenile court from revising its dismissal order. We determine the
juvenile court could have ruled on the lesser-included charge of simple
assault, but jeopardy terminated when the court issued its dismissal
order, and the charge of simple assault cannot be revisited without
violating the double jeopardy principles contained in the United States
and Iowa Constitutions.
I. Background Facts and Proceedings.
In July 2008, the State filed a delinquency petition against Z.S.
alleging he had committed two counts of assault with intent to commit
sexual abuse in violation of Iowa Code sections 708.1 and 709.11 (2007).
These allegations were the product of two different incidents where Z.S.
touched the breast of his ten-year-old half-sister C.V.
A contested delinquency action was heard by the juvenile court at
which Z.S. admitted to touching C.V.’s breasts inappropriately. During
the juvenile proceedings, the State never specifically asked the court to
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rule on the lesser-included offense of assault.
Instead, in its closing
statement, the State declared Z.S. had already confessed to assault and
stated “the fighting issue is obviously the intent to commit sexual abuse.”
In his closing statement, Z.S.’s attorney announced that he did not
disagree with the county attorney’s position on the occurrence of a
simple assault.
The juvenile court issued an order finding Z.S. did not commit two
counts of assault with intent to commit sexual abuse and dismissed the
State’s petition. The court, quoting State v. Radeke, 444 N.W.2d 476,
478 (Iowa 1989), stated it could not “conclude that [Z.S.]’s conduct
‘[r]each[ed] far enough towards the accomplishment, toward the desired
result, to amount to the commencement of the consummation.’ ”
The
court did not rule on the lesser offense of simple assault, but in its
analysis of the intent to commit sexual abuse charges stated that “all
parties agree [a simple assault] happened here.”
Five days after the court issued the order, the State filed a motion
with the juvenile court to enlarge its findings and set aside its dismissal
of the State’s petition. The State requested the court make a finding on
whether Z.S. had committed assault, a lesser-included offense of assault
with intent to commit sexual abuse. Z.S. filed a resistance to the State’s
motion.
In this resistance, Z.S. argued the court lacked authority to
enlarge its findings, the State waived the offense of simple assault by not
specifically requesting the court rule on that offense, and the State failed
to establish beyond a reasonable doubt that Z.S. committed the act of
simple assault.
After a hearing on the State’s motion, the juvenile court held it had
no authority to revisit or enlarge its adjudicatory order.
appealed.
The State
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II. Scope of Review.
“Delinquency proceedings are not criminal proceedings but are
special proceedings that serve as an alternative to a criminal prosecution
of the child with the best interest of the child as the objective.” In re
J.A.L., 694 N.W.2d 748, 751 (Iowa 2005); see also Iowa Code § 232.1
(stating the chapter on juvenile justice matters shall be liberally
construed to provide outcomes that will best serve the child’s welfare and
the best interest of the state).
The scope of review for juvenile court
matters is de novo for both questions of law and fact. In re J.D.F., 553
N.W.2d 585, 587 (Iowa 1996).
The State has requested the juvenile court enlarge its findings and
set aside its dismissal of the State’s petition against Z.S.
We have
previously stated “[a] verdict of acquittal cannot be reviewed, whether for
error or otherwise, without violating the Double Jeopardy Clause.” State
v. Kramer, 760 N.W.2d 190, 193 (Iowa 2009). Z.S. argues the juvenile
court’s dismissal of the State’s petition was the equivalent of an acquittal
and to enlarge or revisit the petition would offend double jeopardy
principles. This is a constitutional claim, and we review constitutional
questions de novo. Id. at 193–94.
III. Discussion and Analysis.
The State makes two separate claims in this case:
(1) juvenile
courts have an affirmative duty to address all lesser-included offenses in
adjudicatory rulings and (2) juvenile courts have authority, if not a duty,
to expand their findings and conclusions of law when they neglect to
address lesser-included offenses that received evidentiary support. While
Z.S. concedes juvenile courts may have the authority to consider lesserincluded offenses, he argues the court’s failure to rule on the offense of
simple assault prior to the court’s dismissal of the petition against him
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cannot be revisited without violating the double jeopardy principles
contained in the United States and Iowa Constitutions.
A. Double Jeopardy. The Double Jeopardy Clause of the United
States Constitution states that no person shall “be subject for the same
offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.
The double jeopardy provision of the Iowa Constitution provides “[n]o
person shall after acquittal, be tried for the same offense.” Iowa Const.
art. I, § 12. However, the Double Jeopardy Clause of the United States
Constitution is applied to state criminal trials through the due process
provision of the Fourteenth Amendment. State v. Franzen, 495 N.W.2d
714, 715 (Iowa 1993). We have used the same constitutional standards
for determining when double jeopardy terminates under the state and
federal constitutions.
See Kramer, 760 N.W.2d at 194.
Therefore, we
may analyze this case under federal double jeopardy standards. Id.
The Double Jeopardy Clause protects against:
“(1) a second
prosecution for the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple punishments for
the same offense.” Id. As we have previously stated, the Clause is
“designed to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an
alleged offense.” It is based upon the principles of finality and
the prevention of prosecutorial overreaching. The principle
reflects a concern that a state should not be allowed to make
repeated attempts to convict an individual for an alleged
offense.
Franzen, 495 N.W.2d at 716 (quoting Green v. United States, 355 U.S.
184, 187, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199, 204 (1957)).
In Breed, the United States Supreme Court declared a juvenile
offender in a delinquency proceeding enjoys the constitutional protection
of double jeopardy. Breed v. Jones, 421 U.S. 519, 531, 95 S. Ct. 1779,
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1786–87, 44 L. Ed. 2d 346, 357 (1975).
Jeopardy attaches to the
juvenile “when the Juvenile Court, as the trier of facts, beg[ins] to hear
evidence.”
Id.
Just like in adult criminal proceedings, jeopardy
terminates when the trial judge enters a final judgment of acquittal.
United States v. Byrne, 203 F.3d 671, 673 (9th Cir. 2000) (citing Fong Foo
v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629,
631 (1962)).
“[T]he Double Jeopardy Clause of the Fifth Amendment prohibits
reexamination of a court-decreed acquittal to the same extent it prohibits
reexamination of an acquittal by jury verdict.” Smith v. Massachusetts,
543 U.S. 462, 467, 125 S. Ct. 1129, 1133, 160 L. Ed. 2d 914, 922
(2005). An acquittal is an order that “actually represents a resolution,
correct or not, of some or all of the factual elements of the offense
charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571,
97 S. Ct. 1349, 1354, 51 L. Ed. 2d 642, 651 (1977); accord Kramer, 760
N.W.2d at 195.
The juvenile court’s dismissal of the State’s petition was an
acquittal because it resolved the factual elements of the offense charged.
The State claims the juvenile court has the authority, if not a duty, to
expand its findings and conclusions of law when it neglects to address
lesser-included
offenses
that
received
evidentiary
support
in
its
adjudicatory order, as it did in Z.S.’s case. At the hearing addressing the
State’s motion to enlarge the juvenile court’s findings and set aside the
dismissal petition, the State argued the court had authority to revisit its
findings under Iowa Rule of Civil Procedure 1.904 (which authorizes the
enlargement, amendment, or modification of a court judgment in civil
proceedings). The State has also cited as authority four Iowa Rules of
Criminal Procedure: rules 2.22(3), 2.6, 2.23(g), and 2.24(2)(e). We find
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that none of the rules cited by the State provide any authority to revisit
this action once the delinquency petition was dismissed, as none of the
rules would allow us to avoid a violation of the Double Jeopardy Clause.
An acquittal “cannot be reviewed, for error or otherwise, without
violating the Double Jeopardy Clause.”
Kramer, 760 N.W.2d at 193;
State v. Taft, 506 N.W.2d 757, 760 (Iowa 1993). The court’s failure to
rule on the offense of simple assault prior to the court’s dismissal of the
petition against Z.S. cannot be revisited without violating the double
jeopardy
principles
contained
in
the
United
States
and
Iowa
Constitutions, as he has already been tried and acquitted. See State v.
Burgess, 639 N.W.2d 564, 568 (Iowa 2001) (“If an offense is a lesserincluded one of the offense charged, a conviction or acquittal of the
charged offense bars a subsequent prosecution of the lesser offense.”).
The juvenile court’s dismissal cannot be revisited.
B.
Duty to Address Lesser-Included Offenses. The State also
claims that juvenile courts have an affirmative duty to address all lesserincluded offenses in adjudicatory rulings, and it was error for the court
to neglect to make a finding on whether Z.S. committed simple assault.
Because of our determination that Z.S. cannot be retried, this issue is
moot. Where, however, an issue is of broad public importance and likely
to recur, we may still consider the issue. State v. Hernandez-Lopez, 639
N.W.2d 226, 234 (Iowa 2002).
In determining whether we should review a moot
action, we consider four factors. These factors include:
(1) the private or public nature of the issue; (2) the
desirability of an authoritative adjudication to guide public
officials in their future conduct; (3) the likelihood of the
recurrence of the issue; and (4) the likelihood the issue will
recur yet evade appellate review.
Id. We have noted that the last factor is the most important. Id.
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Iowa Rule of Criminal Procedure 2.6(3) provides the court guidance
on whether an affirmative duty exists to address all lesser-included
offenses when adults are involved, 1 but there is no corresponding rule for
juvenile delinquency proceedings. Further, we believe that this issue is
likely to recur, yet evade appellate review because double jeopardy, as
here, prevents the court from reaching the issue. Therefore, we find that
the issue of whether the court should consider lesser-included offenses
in a juvenile delinquency proceeding is an issue we should address.
Iowa Code section 232.47(8) declares the juvenile court “shall
make a finding as to whether the child has committed a delinquent act.”
The State asserts that a delinquency petition outlining a greater alleged
offense places the child on notice of any lesser-included offenses, and the
court, therefore, has a duty to address any lesser-included offenses.
During Z.S.’s juvenile proceedings, the State never asked the court to
rule on the lesser-included offense.
Z.S. argues the State waived this
offense by not specifically requesting the court rule on simple assault.
All juvenile proceedings are governed by Iowa Code chapter 232,
entitled “Juvenile Justice.”
Part four of Division II of this chapter
specifically addresses judicial proceedings involving juvenile delinquency
actions.
1Iowa
We must determine whether, under Iowa Code section
Rule of Criminal Procedure 2.6(3) provides:
2.6(3) Duty of court to instruct. In cases where the public offense charged
may include some lesser offense, it is the duty of the trial court to
instruct the jury, not only as to the public offense charged but as to all
lesser offenses of which the accused might be found guilty under the
indictment and upon the evidence adduced, even though such
instructions have not been requested.
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232.47(8), the juvenile court was required to rule on any lesser-included
offenses. 2
Approaches applied by other jurisdictions to determine whether a
lesser-included offense instruction must be requested can be divided into
three separate categories:
trial integrity jurisdictions, party autonomy
jurisdictions, and hybrid jurisdictions. See State v. Cox, 851 A.2d 1269,
1272 (Del. 2003); see also In re Nathan L., 776 A.2d 1277, 1280–81 (N.H.
2001).
In trial integrity jurisdictions, courts require an instruction on any
lesser-included offense supported by the evidence, even if neither party
requests these instructions.
Cox, 851 A.2d at 1272.
The rationale
behind this approach is that it is the judge’s role is to fully instruct the
jury on applicable law. Id.
In adult proceedings, this is the approach we have adopted. See
Iowa R. Crim. P. 2.6(3). We have held that “[e]ven without a request, the
court must instruct fully on all material issues, stating applicable legal
principles supported by requisite evidence.”
State v. Thomas, 262
N.W.2d 607, 612 (Iowa 1978). No similar rule, however, is provided in
Iowa Code chapter 232 or the Iowa Rules of Juvenile Procedure.
See
Iowa Rs. Juv. P. 8.1–.33; see also In re Dugan, 334 N.W.2d 300, 305
(Iowa 1983) (finding Iowa Rule of Criminal Procedure 5.3 is not
applicable to juvenile hearings).
2This
section reads:
At the conclusion of an adjudicatory hearing, the court shall make a
finding as to whether the child has committed a delinquent act. The
court shall make and file written findings as to the truth of the specific
allegations of the petition and as to whether the child has engaged in
delinquent conduct.
Iowa Code § 232.47(8).
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In party autonomy jurisdictions, the trial judge does not interfere
with the parties’ trial strategies. Trial judges, therefore, will not rule on a
lesser-included offense with sufficient evidentiary support until a party
requests it do so. Thus, the burden is first on the parties to determine
whether a lesser-included offense instruction should be considered by
the jury. Cox, 851 A.2d at 1272–73.
The third approach is known as the hybrid approach. Id. at 1273.
In these jurisdictions, the trial judge has the discretion to instruct sua
sponte on a lesser-included offense. Id. This approach attempts to take
a middle ground and prohibit the all or nothing trial strategy allowed in
party autonomy jurisdictions, while still giving the trial judge discretion
over whether to consider a lesser-included offense even when not
requested by one of the parties.
Id.; see also Nathan L., 776 A.2d at
1281.
We believe the purpose of the juvenile justice system is best served
by affording the judge discretion to rule on lesser-included offenses, but
not the obligation to rule on these offenses. In discussing this issue in a
juvenile case, the New Hampshire Supreme Court noted:
[The trial court] has an independent responsibility to
determine the law to be applied in each case. In exercising
that responsibility, the court must be able, either in reaching
a verdict as the trier of fact or instructing the jury, to
consider appropriate lesser-included offenses.
There may, however, be cases where the trial judge
agrees with the parties that, even though the evidence
supports a lesser-included offense, no such instruction
should be . . . considered by the judge as the trier of fact.
The court may then, in the exercise of its sound discretion,
decide not to consider the lesser-included offense.
Nathan L., 776 A.2d at 1281; see also In Interest of Rousselow, 341
N.W.2d 760, 764 (Iowa 1983) (“Section 232.47(10) gives the juvenile
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court the discretion to defer or withhold the order of adjudication of
delinquency after making a finding that the juvenile has engaged in
delinquent conduct.”).
We have recognized that “juvenile delinquency proceedings are not
criminal prosecutions; they are special proceedings that serve as an
ameliorative alternative to the criminal prosecution of children.”
J.D.S., 436 N.W.2d 342, 344 (Iowa 1989).
In re
By providing the court
discretion, but not the obligation, to consider lesser-included offenses,
the court is given the broadest discretion to realize the ameliorative
purposes of the juvenile justice system. See Dugan, 334 N.W.2d at 305
(“The provisions of chapter 232 strive to retain the advantage of informal
proceedings in juvenile court, while providing adequate safeguards to
ensure that the juvenile’s fundamental rights to a fair hearing are
guaranteed.
The informalities of the juvenile system are intended to
benefit the juvenile.” (Citation omitted.)).
Although Iowa Code section 232.47(8) states “the court shall make
a finding as to whether the child has committed a delinquent act,”
subsection (10) provides that “[i]f the court finds that the child did
engage in delinquent conduct, the court may enter an order adjudicating
the child to have committed a delinquent act.”
(Emphasis added.)
Depending on the nature of the delinquent act, the court also has wide
discretion on disposition of the matter. See Iowa Code §§ 232.49–.54.
Clearly discretion is contemplated in many facets of the proceedings
when dealing with juveniles. 3
The ability to consider lesser-included
offenses without the concomitant obligation to make a finding on them
furthers this goal.
3Discretion
is also contemplated before the delinquency petition is filed. Iowa
Code § 232.35. Discretion is even contemplated during the course of an adjudicatory
hearing. Iowa Code § 232.46; see also Rousselow, 341 N.W.2d at 764–65.
12
We hold the juvenile court has the discretion, but not the
obligation, to consider any lesser-included offenses to the delinquent act
charged. The juvenile court should have considered whether to rule on
the lesser-included offense of simple assault even though the State did
not specifically request a ruling on this offense, but was not required to
rule on this offense.
IV. Disposition.
We hold the juvenile court had the discretion to rule on the lesserincluded offense of simple assault, but was not required to rule on that
offense; however, jeopardy terminated when the court issued its
dismissal order, and the charge of simple assault cannot be revisited
without violating the double jeopardy principles contained in the United
States and Iowa Constitutions.
AFFIRMED.
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