|HOME|OPINIONS|


FORT PECK COURT OF APPEALS
ASSINIBOINE AND SIOUX TRIBES
FORT PECK INDIAN RESERVATION
POPLAR, MONTANA
**********************************

    FOR APPELLANT: Ron Arneson, Special Prosecutor, P. 0. Box 1133, Wolf Point, Montana 59201.

    FOR APPELLEE: Melissa G. Melton, Lay Advocate, P. 0. Box 214, Wolf Point, Montana 59201.

    CRIMINAL LAW: PURSUANT TO I CCOJ 202, THE FACTUAL DETERMINATIONS OF THE TRIBAL COURT WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WERE SET ASIDE; AND DEFENDANT’S ACTIONS DEMONSTRATE THE ACTUAL COMMISSION OF OR CRIMINAL COMPLICITY WITH ANOTHER TO NEGLECT A CHILD IN VIOLATION OF III CCOJ 214(d).

    CLARIFICATION OPINION by Arnie A. Hove, Chief Justice, joined by Associate Justices Gary James Melbourne and Floyd Azure.

    HELD: THERE WAS SUBSTANTIAL CREDIBLE EVIDENCE TO SUPPORT A FINDING OF GUILTY AND THEREFORE THE FACTUAL DETERMINATION OF THE TRIBAL COURT THAT APPELLEE WAS NOT GUILTY WAS SET ASIDE. APPELLEE WAS ADJUDGED GUILTY OF THE OFFENSE -OF NEGLECT OF A CHILD, A VIOLATION OF III CCOJ 214(d) AND THE MATTER REMANDED TO TRIBAL COURT FOR IMPOSITION OF AN APPROPRIATE SENTENCE WITHIN THIRTY (30) DAYS OF THE FILING OF THIS CLARIFICATION OPINION.

    The facts set forth in this clarification opinion are the same as in the original opinion except those which have occurred since the filing of the opinion July 25, 1989.

    On or about March 11, 1989, the Appellee was charged with the offense of Child Neglect, a violation of III CCOJ 214(d). Neighbors reported to the Roosevelt County Sheriff’s Office that Appellee was intoxicated and tried to fight the male occupant in Apt #6, yelling at 2 small children in his apartment and leaving them alone while he went to get booze. Appellee was belligerent and refused investigating officers entrance into the apartment to check on the children’s welfare.

    After arresting Appellee and entering the apartment, the officers observed beer cans on the floor and table and an empty pint of liquor on the table. Appellee and Anna Crazy Bull were arrested for neglecting the children in their apartment while in their intoxicated condition. The young children were temporarily removed from the home.

    On March 13, 1989, Appellee entered a plea of not guilty. On April 13, 1989, a bench trial was held. The trial was a joint trial with Anna Crazy Bull. As witnesses, Appellee and his codefendant called Deputy Sheriff Mike Lamay and a BIA Sergeant John Yellowrobe.

    Upon hearing the testimony and reviewing evidence, the Honorable Terry Boyd stated, "With respect to John Stormy, I think that the prosecution has failed to prove anything other than that he was present outside the apartment so I will find John Stormy not guilty on the charge of Child Neglect." The Tribes appealed from the verdict of not guilty.

    In the Motion for Appeal of a finding of Not Guilty in a Judge Trial on a Charge of Neglect of a Child on April 17, 1989, Special Prosecutor stated, "The Tribe has an appeal right from a judgment of "‘not guilty"’ by a judge of the Tribal Court , I CCOJ 205(a). The reason for the appeal is there was evidence beyond a reasonable doubt of guilty as charged of the within defendant."

    The sole issue addressed by this Court in its original opinion was as follows:

"Whether there was substantial credible evidence to support the tribal court’s finding ‘that the prosecution has failed to prove anything other than that he was present outside the apartment so I will find John Stormy not guilty on the charge of Child Neglect.

    The Court issued a unanimous decision setting aside the factual determination of the tribal court and entering a judgment of guilty of neglect of a child under III CCOJ 214(d) against Appellee. The matter was remanded to tribal court for imposition of a sentence within thirty (30) days of the filing of the opinion.

    The tribal court filed a Request for Clarification dated August 9, 1989. In the request the tribal court cites to this Court’s opinion and states:

    "I have reviewed the trial transcript and have found no admission of that fact. The Appellee was found not guilty because the prosecution failed to provide any connection between the Appellee and his codefendant and her children."

The factual determination set forth above appears no where in the trial transcript, however, it will still be addressed in this clarification opinion.

    The jurisdiction of the Court of Appeals was previously discussed and is set forth in I CCOJ 202 which reads in part as follows:

    "The jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court. The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence...."

In this opinion, this Court will specifically clarify its finding the factual determination of the tribal court was not supported by substantial evidence in relation to appropriate action under I CCOJ 202.

I.

    The only evidence this Court reviewed and used in making its decision was the trial transcript of the testimony of Appellant and Appellee’s witnesses. In the July 25, 1989 opinion, this Court reviewed the testimony of each of the prosecution’s witnesses to determine if there was substantial evidence to support the tribal court’s determination that Appellee is not guilty of violating III CCOJ 214(d). Appellee was charged with "Neglect of a child" and III CCOJ 214(d) reads as follows:

    "Any parent, guardian, or custodian of a child under eighteen (18) years of age who neglects that child as defined in Section 102(d) of Title V of this Code shall be guilty of neglect of a child.

    Neglect of a child is a Class A misdemeanor.

Title V CCOJ 102 defines neglected child and reads in part as follows:

    "...

    "(d) Neglected child. A child:

        (1) whose parent, guardian or custodian fails to provide the minimal care which a reasonably prudent parent would provide in the circumstances for the subsistence, education, and welfare of the child; or

        (2) who has special physical or mental conditions for which the child’s parent, guardian or custodian neglects or refuses to provide a reasonable level of special care; or

        (3) whose parent, guardian or custodian is unable to discharge his or her responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity.

A child shall not be deemed neglected if the reason for failing to provide adequate care for the child is the indigence of the parent or guardian.

    Minimal care shall mean provision of adequate food, clothing, shelter, medical care, and day-to-day supervision. In determining whether minimal care has been provided, the Court shall apply the standards prevailing in the community.

"...."

    This Court found no evidence presented that Appellee was a parent or guardian of the children as defined in the CCOJ. However, V CCOJ 102(h), defines a custodian as, "A person or agency, other than a parent or legal guardian . . . who is acting loco parentis." Black’s Law Dictionary defines in loco parentis as, "In the place of a parent; instead of a parent; charged, factitiously, with a parent’s rights, duties, and responsibilities."

    The testimony of the prosecutions witnesses established by direct and circumstantial evidence, Appellee had more than just a superficial interest in the apartment, Anna Crazy Bull and her children when he attempted to keep investigating officers from entering the apartment. Appellee was in fact acting as if he were in charge of the apartment and people residing therein especially when the only other adult in the apartment, Anna Crazy Bull, was intoxicated, unresponsive and unable to care for the children. This evidence alone refutes the determination of the tribal court Appellee was not guilty because he was outside the apartment. This evidence also refutes the tribal court’s more recent statement "the prosecution failed to prove any connection between Appellee and his co—defendant and her children."

    At oral argument, Associate Justice Azure did ask questions of Anna Crazy Bull regarding whether Appellee was the natural parent of the children or living with Anna Crazy Bull and her children. This testimony was not used by this Court in reaching its original unanimous decision nor is it being used now.

    The evidence at the bench trial clearly establishes Appellee was in the apartment and refusing to allow the officers entrance to check on the welfare of the children. This evidence establishes Appellee appeared to be claiming some right to the apartment and interest in the same as well as Anna Crazy Bull and the children by this refusal or was attempting to aid the Anna Crazy Bull in her conduct of neglecting the children within the apartment.

    In attempting to aid Anna Crazy Bull by keeping investigating officers from entering the apartment and assisting the baby in distress, Appellee was also guilty of violating III CCOJ 214(d) under the criminal complicity statute at III CCOJ 111. This section reads in part as follows:

    "(a) A person may be convicted of an offense based upon the conduct of another person when:

"...

    "(2) with the intent that an offense be committed, the defendant solicits, requests, commands, induces or intentionally aids another person to engage in such conduct or

"...."

    The testimony of the officers established Appellee attempted to aid Anna Crazy Bull in her neglect of the children when he would not let the officers in to assist the children. The evidence is uncontradicted Appellee and Anna Crazy bull were unable to provide minimal care of adequate clothing and day-today supervision of the children because they were in an intoxicated state, unresponsive to the officers and unable to hear and assist the baby. The evidence establishes the baby was lying next to Anna Crazy Bull and reportedly crying for quite some time because of a dirty diaper or other reasons. The evidence establishes the neighbors felt compelled to contact the Roosevelt County Sheriff’s Office.

    In view of the foregoing evidence, the factual determination of the tribal court that the prosecution has failed to prove anything other than Appellee was present outside the apartment was not supported by any evidence. However, there was substantial evidence to support a conviction of Appellee for neglect of a child. Therefore, this Court set aside the factual determination, entered a judgment of guilty against Appellee and determined what relief the Tribes were entitled to in the instant case.

    Because Appellee was subjected to a bench trial on April 13, 1989 and a judgment of "not guilty" was entered, this Court did not want to violate the Indian Civil Rights Act of 1968 and more particularly 25 U.S.C.S. Section 1302 and try Appellee again for this offense. It was the decision of this Court to set aside the factual determination of the tribal court that Appellee is "not guilty" and enter judgment finding Appellee guilty of the offense of neglect of a child, a violation of III CCOJ 214(d). This matter was remanded to the tribal court for imposition of an appropriate sentence within thirty (30) days of the filing of this opinion.

    In conclusion, this Court answers the tribal court’s request for clarification by stating facts not admitted into evidence during the original trial were not used to set aside its factual determination. The tribal court’s factual determination was clearly not supported by the evidence presented at the original trial since the uncontradicted evidence establishes Appellee was inside (not outside) the apartment and attempting to deny investigating officers entrance to assist the children and more particularly a baby in distress.

    The tribal court is directed to inform the Appellee of the above and that he is guilty of the offense of "Neglect of a child" in violation of III CCOJ 214(d). The tribal court then must impose an appropriate sentence for this offense in conformity with any sentence imposed against the co-defendant.

________________________________________________________________________________________________

IT WAS AND STILL REMAINS THE UNANIMOUS DECISION OF THIS COURT THERE WAS SUBSTANTIAL CREDIBLE EVIDENCE TO SUPPORT A FINDING OF GUILTY AND THEREFORE THE FACTUAL DETERMINATION OF THE TRIBAL COURT THAT APPELLEE WAS NOT GUILTY IS SET ASIDE. APPELLEE WAS ADJUDGED GUILTY OF THE OFFENSE OF NEGLECT OF A CHILD, A VIOLATION OF III CCOJ 214(d) AND THIS MATTER IS REMANDED TO TRIBAL COURT FOR IMPOSITION OF AN APPROPRIATE SENTENCE WITHIN THIRTY (30) DAYS OF THE FILING OF THIS CLARIFICATION OPINION.

    DATED this _____ of August, 1989.

BY THE COURT OF APPEALS:

___________________________
ARNIE A. HOVE, Chief Justice

___________________________
GARY JAMES MELBOURNE, Associate Justice

___________________________
FLOYD AZURE, Associate Justice

|TOP|HOME|OPINIONS|