State v. Q.D.State v. Q.D.
- Reporters:
- ,
- Before:
- Dimmick (en banc)
DIMMICK, J.
Two juveniles appeal from separate adjudications which found that they had committed offenses which if committed by an adult would be crimes. The Court of Appeals, in these consolidated appeals, certified to this court the questions whether the statutory presumption of infant incapacity,
We hold that (1)
Appellant Q.D. was found to have capacity per
Appellant M.S., in a single proceeding, was found to have capacity and to have committed indecent liberties on a 4 1/2-year-old child for whom she was babysitting. Evidence included the testimony of the victim, the victim‘s mother, a physician who had examined the victim, and a social worker who had interviewed the victim. M.S. was less than 3 months from 12 years old at the time of the offense. The issue of capacity was first raised by the defendant in a motion to dismiss at the close of the State‘s evidence. The State argued that defendant‘s proximity to the age when capacity is assumed, the defendant‘s threats to the victim not to tell what had happened, and her secrecy in carrying out the act were ample proof of capacity. The trial judge, in his oral ruling finding capacity, stated that the responsibility entrusted to the defendant by the victim‘s mother and her own parents in permitting her to babysit showed a recognition of the defendant‘s maturity.
I
APPLICABILITY OF RCW 9A.04.050 TO JUVENILE COURTS
Counsel for both the State and the defendants urge us to hold that the infant incapacity defense in
At common law, children below the age of 7 were conclusively presumed to be incapable of committing crime, and children over the age of 14 were presumed capable and treated as adults.2 Children between these ages were rebuttably presumed incapable of committing crime. Washington
The infancy defense fell into disuse during the early part of the century with the advent of reforms intended to substitute treatment and rehabilitation for punishment of juvenile offenders. This parens patriae system, believed not to be a criminal one, had no need of the infancy defense.
[1, 2] The juvenile justice system in recent years has evolved from parens patriae scheme to one more akin to adult criminal proceedings. The United States Supreme Court has been critical of the parens patriae scheme as failing to provide safeguards due an adult criminal defendant, while subjecting the juvenile defendant to similar stigma, and possible loss of liberty. See In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1966); In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1977). This court has acknowledged Washington‘s departure from a strictly parens patriae scheme to a more criminal one, involving both rehabilitation and punishment. In re Smiley, 96 Wn.2d 950, 640 P.2d 7 (1982). Being a criminal defense,
The principles of construction of criminal statutes, made necessary by our recognition of the criminal nature of juvenile court proceedings, also compel us to conclude that
A finding that
II
STANDARD OF PROOF UNDER RCW 9A.04.050
The State has the burden of rebutting the statutory presumption of incapacity of juveniles age 8 and less than 12 years. Capacity must be found to exist separate from the specific mental element of the crime charged. While capacity is similar to the mental element of a specific crime or offense, it is not an element of the offense, but is rather a general determination that the individual understood the act and its wrongfulness. Both defendants liken the incapacity presumption to a jurisdictional presumption. Were capacity an element of the crime, proof beyond a reasonable doubt would be required. In re Winship, supra; State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977). But capacity, not being an element of the crime, does not require as stringent a standard of proof.
Few jurisdictions have ruled on the appropriate standard
Our recent discussion of the standard of proof to be applied in involuntary commitment proceedings offers guidance. In Dunner v. McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984), we held that the burden of proof should be by clear, cogent and convincing evidence. Dunner, at 843. In so holding, we recognized that the preponderance of the evidence standard was inadequate, but the proof beyond a reasonable doubt standard imposed a burden which, as a practical matter, was unreasonably difficult, thus undercutting the State‘s legitimate interests. See also Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1979).
[3] The Legislature, by requiring the State to rebut the presumption of incapacity, has assumed a greater burden than the minimal proof imposed by the preponderance of the evidence standard. On the other hand, to require the State to prove capacity beyond a reasonable doubt when the State must also prove the specific mental element of the charged offense by the same standard, is unnecessarily duplicative. Frequently, the same facts required to prove mens rea will be probative of capacity, yet the overlap is not complete. Capacity to be culpable must exist in order to maintain the specific mental element of the charged
III
EVIDENCE OF CAPACITY
We do not need to reach the question of whether there was substantial evidence to show that Q.D. understood the act of trespass or understood it to be wrong, as we reverse on other grounds. (See part IV of this opinion.) Nevertheless, a discussion of capacity in this case may prove instructive to trial courts. Q.D. argues that the evidence showed only that he was familiar with the juvenile system through his previous plea of guilty to a burglary charge, but did not show he understood the act and wrongfulness of trespass. The language of
The issue of capacity was first raised on M.S.‘s motion to dismiss at the end of the trial. The judge stated in response to arguments of counsel that he was persuaded by the confidence in defendant‘s maturity held by the mother of the victim and her own parents in permitting her to assume the responsibility for babysitting. Contrary to defendant‘s arguments that the trial judge created a prima facie proof of capacity based solely on babysitting, there was other evidence to support his finding of capacity. The defendant waited until she and the victim were alone, evidencing a desire for secrecy. The defendant later admonished the victim not to tell what happened, further supporting the finding that the defendant knew the act was wrong. Lastly, the defendant was less than 3 months from the age at which capacity is presumed to exist. There was clear and convincing circumstantial evidence that M.S. understood the act of indecent liberties and knew it to be wrong.
[4] Finally, in response to the parties’ requests for guidelines concerning the forum of the capacity hearing, we find the separate hearing in Q.D.‘s case, and the single hearing of capacity and the substantive charge in M.S.‘s case to be appropriate under the different circumstances in each. In Q.D.‘s case, prior criminal history was the basis for attempting to prove capacity, and thus a separate hearing avoided prejudice. In M.S.‘s case, the facts of the offense were offered to show capacity, and a separate hearing would be unduly repetitive. Rather than delineating a rigid rule, the circumstances should dictate whether a separate hearing is appropriate. See State v. Koloske, 100 Wn.2d 889, 676 P.2d 456 (1984), where we declined endorsement of a fixed forum for ruling on admissibility of impeachment evidence. In the event that it is necessary to show capacity by proof of both criminal history and the particular facts of the offense charged, caution should be employed to prevent the introduction of evidence of prior history from prejudicing the determination on the merits.
SUFFICIENCY OF EVIDENCE OF TRESPASS
Q.D. contends that the evidence introduced to show trespass in the first degree was insufficient to show he entered or remained unlawfully in the building, and, at most, showed possession of recently stolen goods. He argues that possession of recently stolen goods, without other evidence of guilt, is insufficient to show entry in a trespass charge just as it is in burglary. We agree.
[5] Recently, in State v. Mace, 97 Wn.2d 840, 650 P.2d 217 (1982), we reiterated the long-standing law in Washington that proof of possession of recently stolen property is not prima facie evidence of burglary unless accompanied by other evidence of guilt. See State v. Garske, 74 Wn.2d 901, 447 P.2d 167 (1968); State v. Portee, 25 Wn.2d 246, 170 P.2d 326 (1946). Other evidence of guilt may include a false or improbable explanation of possession, flight, use of a fictitious name, or the presence of the accused near the scene of the crime. State v. Mace, supra. While Q.D. was on the school grounds with the keys, the keys were not known to be missing until he was seen with them, and they had last been seen several hours before in a desk in an unlocked office. Thus, both the absence of evidence that he was near the scene at a time proximate to the disappearance of the keys, and the absence of other evidence corroborative of guilt require us to conclude that there was insufficient evidence of trespass in the first degree. We therefore reverse Q.D.‘s conviction.
V
APPLICABILITY OF RCW 7.68.035 TO JUVENILE PROCEEDINGS
[6-8] After M.S. was found guilty, in addition to community supervision and community service, the court imposed a $50 assessment pursuant to
(1) Whenever any person is found guilty in any court of competent jurisdiction of having committed a crime, ... there shall be imposed by the court upon such convicted person a penalty assessment of fifty dollars for a felony or gross misdemeanor and twenty-five dollars for a misdemeanor. The assessment shall be in addition to any other penalty or fine imposed by law.
...
(7) Penalty assessments under this section shall also be imposed in juvenile offense dispositions under Title 13 RCW.
The Legislature later amended section 7 by adding the sentence, “Upon motion of a party and a showing of good cause, the court may modify the penalty assessment in the disposition of juvenile offenses under Title 13 RCW.” Laws of 1983, ch. 239, § 1.
The juvenile justice act provides:
The provisions of
chapters 13.04 and13.40 RCW , as now or hereafter amended, shall be the exclusive authority for the adjudication and disposition of juvenile offenders except where otherwise expressly provided.
The crime victims compensation act expressly and unambiguously provides for the application of the penalty in juvenile dispositions. Being clear on its face, and unambiguous, we need not interpret the language. State v. McIntyre, 92 Wn.2d 620, 600 P.2d 1009 (1979). While a general statute is usually subjugated to a specific statute, here the crime victims compensation act specifically and expressly addresses itself to the juvenile justice act thus prevailing over rules of statutory construction. See State v. Sargent, 36 Wn. App. 463, 674 P.2d 1268 (1984).
We are likewise not persuaded that the Legislature intended a discretionary application. The use of the word “shall” creates an imperative obligation unless a different legislative intent can be discerned. State v. Bryan, 93 Wn.2d 177, 606 P.2d 1228 (1980). The subsequent amendment to section 7 permits the court on a showing of good
CONCLUSION
The infancy defense, codified in
WILLIAMS, C.J., ROSELLINI, UTTER, BRACHTENBACH, DOLLIVER, DORE, and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur.
Notes
“Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.”