Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
J.R. v. State (1/31/2003) ap-1850
J.R. v. State (1/31/2003) ap-1850
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
J.R., )
) Court of Appeals No.
A-7682
Appellant, ) Trial
Court No. 4BE-97-16 A.C.P.
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1850 - January 31, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Mark I. Wood, Judge.
Appearances: Mitchel J. Schapira, Anchorage,
for Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
On February 19, 1997, Evan Ramsey took a shotgun to
Bethel Regional High School and murdered the principal, Ron
Edwards, and a fellow student, Josh Palacios.1 After an
extensive investigation, the State discovered evidence that J.R.
taught Ramsey how to use the shotgun, urged Ramsey to carry out
his plan to kill Edwards and Palacios, and urged others not to
interfere with Ramseys plan. The State filed a petition for an
adjudication of delinquency against J.R. A jury ultimately
convicted J.R. of two counts of murder in the second degree on
the theory that J.R. had knowingly engaged in conduct manifesting
an extreme indifference to the value of human life.2 J.R.
appeals his convictions to this court. J.R. contends that the
jury should have judged whether his conduct was reckless against
the standard of a reasonable juvenile i.e., a reasonable person
of his age, intelligence, and experience under similar
circumstances. He argues that Superior Court Judge Pro Tem Mark
I. Wood erred in instructing the jury that it should measure
J.R.s conduct against the standard of a reasonable person a
reasonable adult. He contends that Judge Wood erred in refusing
to allow him to argue that J.R.s conduct was not reckless when
compared to the conduct of a reasonable juvenile. We agree with
J.R.s contention that his conduct should be judged by asking
whether it conformed to the conduct of a reasonable juvenile. We
accordingly reverse his convictions.
To obtain a conviction for murder in the second degree
under a theory that the defendant acted with a manifest
indifference to the value of human life, the State must show that
the defendant acted with extreme recklessness.3 The States
theory in J.R.s case can be stated succinctly. Ramsey had a
shotgun and talked about taking it to school to shoot people,
including Edwards and Palacios. J.R. taught Ramsey how to
operate the shotgun and encouraged Ramsey to follow through with
his plan. J.R. also encouraged others not to interfere with
Ramsey. The State contended that J.R.s actions constituted
second-degree murder under the theory that he had acted with
extreme indifference to the value of human life and that this
conduct was a cause of the deaths. J.R. contended that he
believed that Ramsey was not serious about actually committing
murder and that it was reasonable for him to conclude that Ramsey
was just bragging and for him to respond in kind.
In general, the law requires a juvenile to meet the
standard of care of a reasonable person of similar age,
intelligence, and experience under the same circumstances.4 But
Judge Wood reasoned that because J.R. was engaged in an activity
that involved the use of a firearm, J.R.s conduct constituted an
adult activity. He concluded that he should instruct the jury
that J.R. should be held to the standard of care of a reasonable
adult.
The State relies on Ardinger v. Hummell,5 a civil case
decided by the Alaska Supreme Court, in arguing that Judge Wood
properly ruled that J.R.s recklessness was to be judged against
the standard of a reasonable adult. In Ardinger, fourteen-year-
old Normandy Hummell took her mothers car without permission and
allowed fifteen-year-old Joshua Van Bavel to drive the car.6
When Coast Guard Security Officers attempted to stop the car,
Joshua sped away, lost control of the car, and collided with a
utility pole, causing his death.7 Joshuas mother, Sherie
Ardinger, both for herself and as a personal representative of
her sons estate, sued Normandy and her mother on the theory that
they had negligently allowed Joshua to operate the car, resulting
in his death.8 The trial court rejected Ardingers request to
instruct the jury that because fourteen-year-old Normandy was
engaged in an adult activity, Normandy should be held to an adult
standard of care. The trial court charged the jury that Normandy
was to be held to a standard of care of a person of her own age,
intelligence, knowledge, and experience under similar
circumstances.9 The jury entered a defense verdict in favor of
Normandy and Pamela Hummell.10
On appeal, the supreme court relied on the Restatement
(Second) of Torts in setting out the general rule that children
should be held to the standard of care of a reasonable person of
the same age, intelligence and experience under like
circumstances.11 The supreme court explained that public policy
dictated that it would not be fair to hold a child legally
responsible for a standard that most children would not be
capable of meeting.12
But again, relying on the Restatement (Second) of
Torts, the court recognized that an exception to the general rule
may arise where the child engages in an activity which is
normally undertaken only by adults, and for which adult
qualifications are required.13 The court stated:
Under Alaska law, exercising physical control
of a motor vehicle on a roadway is an adult
activity requiring a drivers license. Alaska
law recognizes that operating a motor vehicle
includes exercising dominion over or physical
control of a motor vehicle just as it
includes driving a motor vehicle. Children
who physically control vehicles must, for
public safety reasons, be held to an adult
standard of care.14
The court concluded that Normandys actions in entrusting the car
to Joshua should have been evaluated under an adult standard of
care. The court therefore reversed the jury verdict.15
The State contends that the reasoning of Ardinger
supports the conclusion that the question of whether J.R. was
reckless should also be judged under an adult standard of care.
The State argues that a juvenile who engages in activities with a
firearm is engaged in an adult activity and therefore should be
held to an adult standard. The State cites several cases that it
suggests support this view. But only one of these cases actually
holds that an adult standard of care should apply to a juvenile
who uses a firearm. In that case, Huebner v. Koelfgeren,16 a
fourteen-year-old shot a BB gun that struck another boy above the
eye. The Minnesota Court of Appeals held that the adult standard
of care should be imposed on and expected by a teenager handling
a gun; the public generally has a right to expect a single adult
standard of care from individuals who handle guns.17 But the
Minnesota Supreme Court has held, also in the context of an
accidental shooting, that an adult standard of care does not
apply in juvenile criminal proceedings.
In In re S.W.T.,18 two twelve-year-old boys shot across
a river in the general direction of other people, and one of the
shots struck and killed an individual.19 The juveniles were
subsequently charged with aiding and abetting second-degree
manslaughter.20 The juvenile court, citing a civil case, held
the youths to an adult standard of care because the activity
involved extreme danger.21 On appeal, the supreme court held
that the juvenile court erred in applying an adult standard and
concluded that in juvenile proceedings, the question of culpable
negligence must be decided with reference to the conduct and
appreciation of risk reasonably to be expected from an ordinary
and reasonably prudent juvenile of a similar age.22
Each of the other two cases that the State relies on
only generally address, in dicta, the adult exception as it
relates to juveniles and activities involving firearms. In Goss
v. Allen,23 a civil case before the New Jersey Supreme Court, a
seventeen-year-old skier struck another skier and was sued for
damages for negligence.24 The court held that the skier should
be held to the standard of care of a reasonably prudent seventeen-
year-old.25 But in dicta, relying on the Restatement (Second) of
Torts, the court stated:
We recognize that certain activities engaged
in by minors are so potentially hazardous as
to require that the minor be held to an adult
standard of care. Driving a motor vehicle,
operating a motor boat and hunting would
ordinarily be so classified.26
In the second case, In re William G.,27 a fifteen-year-
old juvenile was adjudicated a delinquent for charges that arose
from his colliding with a parked car while he was riding in a
shopping cart in a shopping center parking lot. The Arizona
Court of Appeals held that riding a shopping cart in a parking
lot when done by a fifteen year old is an activity that must be
judged by the standard of fifteen year olds of like age,
intelligence and experience.28 The court stated that the general
rule in Arizona and throughout the country in civil cases was
that a juvenile would generally be held to the standard of care
of a reasonable person of like age, intelligence, and maturity.
But again, in dicta, the court went on to explain that there was
an exception for special circumstances such as operation of an
automobile, hunting, use of an inherently dangerous instrument or
participating in an inherently dangerous activity.29
Contrary to the States position, however, in addition
to the Minnesota Supreme Courts decision in S.W.T., other courts
in criminal cases have applied a juvenile standard of care to
adolescents involved with firearms. For example, in In re
Malter,30 the Louisiana Court of Appeals held a fourteen-year-old
boy to the standard of case of a like individual of similar
age.31 In Malter, the defendant was charged with negligent
homicide for shooting and killing another youth with a BB gun.32
In determining the standard of care to apply to the charge, the
court stated:
In determining whether a juveniles conduct
has deviated beyond the reasonable mans
standard of care, due regard must be given to
the offenders age, maturity, intelligence and
knowledge, both generally and as to the
particular situation involved, as well as to
all the facts and circumstances of the case,
including the particular risk that produced
the injury.33
While the court upheld the defendants conviction, it did so only
after concluding that the defendants conduct failed to meet the
standard expected of a fourteen-year-old youth under similar
circumstances.34
A second example is State v. Marshall,35 which was
decided by the Washington Court of Appeals. In Marshall, a
fifteen-year-old boy was convicted of first-degree manslaughter
for the shooting death of his sixteen-year-old friend.36 The
defendant challenged the conviction, arguing that the
manslaughter statute was void for vagueness because it did not
include a separate standard by which to assess juvenile
accountability.37 In denying the defendants appeal, the court
explained:
[O]ur holding does not mean a 15-year-old boy
must act as a reasonable adult or risk a
criminal conviction. The standard set forth
in [the Washington manslaughter statute] is
that of a reasonable man in the same
situation. The objective standard of
reasonableness entails a certain flexibility.
. . . In manslaughter cases, the juvenile
status of a defendant is part of his
situation and relevant to a determination of
whether he acted reasonably. The trial court
here recognized this, and correctly judged
Mr. Marshalls actions in terms of his age.38
Furthermore, in examining the tort cases addressing the
issue of what standard of care to apply to juveniles involved
with firearms, we found that the majority declined to apply an
adult standard of care.39 Representative of the cases in this
area is the Oregon case of Thomas v. Inman.40 In that case, an
eleven-year-old shot and killed a ten-year-old with a shotgun.41
The eleven-year-old and his father were sued for the wrongful
death of the ten-year-old. The court rejected the argument that
the child should be held to an adult standard of care.42 In
reaching its decision, the court analyzed the exception set out
in the Restatement (Second) of Torts, which applies an adult
standard of care where the child engages in activities that are
normally undertaken only by adults and for which adult
qualifications are required.43 The court recognized that it had
adopted an adult standard of care for juveniles engaging in
activities such as operating automobiles.44 But the court noted
that it had not extended this rule to other activities. The
court stated:
The principal reason for not extending the
rule in this case is that handling guns in
Oregon is not an activity which is normally
undertaken only by adults. In rural
districts of this state children, or those
who have not been licensed to drive
automobiles, have always used guns both for
target practice and hunting under different
circumstances. Thus, although using guns is
as dangerous as driving cars, the former
activity does not meet the threshhold
requirement for coming within the Restatement
exception to the general standard of care for
minors. In addition, it appears from our
research that no state that has considered
the question has imposed an adult standard of
care on a minor defendant who has injured a
person with a firearm.45
Although Thomas v. Inman states the majority rule in
civil cases, the State points to a draft of the Restatement
(Third) of Torts, which expands on the position that there are
certain dangerous activities that are characteristically
undertaken by adults where the juvenile should be held to an
adult standard of care.46 The draft addresses firearms as
follows:
Handling firearms is best regarded as a
dangerous adult activity. The dangers
involved in firearm use are obvious and
dramatic.47
The draft of the Restatement (Third) does provide support for the
States argument that tort law may be changing to apply an adult
standard of care where a juvenile is charged with negligence or
recklessness in the use of a firearm.
We see three major barriers to adopting the States
contention that J.R. should be held to an adult standard of care
in this case. The first we have already set out in some detail
the majority rule in tort cases reject applying an adult standard
of care where a juvenile negligently or recklessly injures
another with a firearm. Second, even if tort law applied such a
standard, there would be a serious question whether we should
adopt such a rule in determining criminal responsibility. Tort
law has different goals than criminal law. Tort law emphasizes
compensating victims who have been injured by anothers conduct.
The real issue is often whether anyone should be required to
compensate the injured party. In arguing for an adult standard
of care for dangerous activities, the Restatement (Third) draft
notes that [i]f adolescents who engage in dangerous activities
such as motoring were held to less than a full standard of care,
the result in terms of non compensation of victims of substandard
conduct would be quite serious.48 The draft goes on to note that
young motorists have high accident rates and that many
adolescents have immature judgment and engage in dangerous risk-
taking activities on a frequent basis.49 Criminal law, on the
other hand, emphasizes punishment, deterrence, and rehabilitation
of the individual criminal defendant, rather than focusing on
compensation for the injured victim.50 This difference in focus
could lead to applying a different standard of care in criminal
and civil cases.51
But the major barrier that we see to applying an adult
standard of care to this case is that J.R. was not charged with
the reckless use of a firearm. The cases and commentary that the
State relies on all refer to factual patterns where the juvenile
defendant is engaged in hunting or otherwise directly injures
someone through the use of a firearm. But in J.R.s case, the
States theory of prosecution was that J.R. had incited Ramsey to
commit the murders by showing him how to operate the shotgun, by
taking numerous steps to encourage him to commit the crime, and
by encouraging others not to interfere with Ramseys plan to
commit murder. The States case rested on the inference that
these actions showed that J.R. consciously disregarded a
substantial and unjustifiable risk that his conversations with
Ramsey would result in Ramseys shooting people.
We are unaware of any authority to support the claim
that J.R. should be held to an adult standard for his actions of
showing Ramsey how to use a shotgun and encouraging him to carry
out the plan to take the shotgun to school and commit murder.
Arguably, under Ardinger, the States reasoning might apply to
instances where a juvenile negligently entrusted a firearm to
another person. But here, J.R. was not charged with careless use
or careless entrustment of a firearm. If we held that juveniles
are to be held to an adult standard of care for conversations
that result in another person committing a crime, it appears to
us that we would effectuate a broad and major change in the law
juveniles would frequently be held to an adult standard of care.
It was undisputed that J.R. knew that shooting people
with a shotgun was dangerous. The dispute was whether J.R. knew
or reasonably should have known that Ramsey would go beyond mere
words and would actually proceed to gun people down at the
school. To resolve this issue, the jury should have evaluated
J.R.s level of care against the standard of care reasonably
expected of a juvenile not an adult.
We accordingly conclude that Judge Wood erred in
instructing the jury that J.R.s actions should be judged by an
adult standard of care rather than charging that J.R.s conduct
should be judged by the standard of a reasonable person of J.R.s
like age, intelligence, and experience under similar
circumstances. We also conclude that Judge Wood erred in
refusing to allow J.R. to argue to the jury that his actions were
not reckless, when judged against the standard of a reasonable
person of his age, intelligence, and experience under similar
circumstances. We accordingly REVERSE J.R.s convictions.
The judgment of the superior court is REVERSED.
_______________________________
1 The facts and disposition of Ramseys case are set out in
Ramsey v. State, 56 P.3d 675 (Alaska App. 2002).
2 AS 11.41.110(a)(2).
3 Neitzel v. State, 655 P.2d 325, 332-33, 336-37 (Alaska
App. 1982).
4 See, e.g., Restatement (Second) of Torts 283A (1965)
(applying civil standard); In re S.W.T., 277 N.W.2d 507, 513-14
(Minn. 1979) (applying a juvenile standard to criminal charge
involving accidental shooting).
5 982 P.2d 727 (Alaska 1999).
6 Id. at 729.
7 Id. at 730.
8 Id.
9 Id.
10 Id.
11 Id. at 731 (quoting Restatement (Second) of Torts,
supra 283A ).
12 Id.
13 Id. (quoting Restatement (Second) of Torts, supra,
283A cmt. c ).
14 Id. (footnotes omitted).
15 Id. at 738.
16 519 N.W.2d 488 (Minn. App. 1994).
17 Id. at 489-90.
18 277 N.W.2d 507 (Minn. 1979).
19 Id. at 509-10.
20 Id. at 510.
21 Id. at 513-14.
22 Id. at 514.
23 360 A.2d 388 (N.J. 1976).
24 Id. at 389.
25 Id. at 391.
26 Id. at 390.
27 963 P.2d 287 (Ariz. App. 1997).
28 Id. at 293.
29 Id.
30 508 So.2d 143 (La. App. 1987).
31 Id. at 144.
32 Id. at 143.
33 Id. at 144.
34 Id. at 145.
35 692 P.2d 855 (Wash. App. 1984).
36 Id. at 856.
37 Id.
38 Id. at 857.
39 Purtle v. Shelton, 474 S.W.2d 123, 125-26 (Ark. 1971);
Ortega v. Montoya, 637 P.2d 841, 842-43 (N.M. 1981); LaBarge v.
Stewart, 501 P.2d 666, 670 (N.M. App. 1972); Thomas v. Inman, 578
P.2d 399, 403 (Or. 1978); Prater v. Burns, 525 S.W.2d 846, 851
(Tenn. App. 1975); see also W. Page Keeton et. al., Prosser &
Keaton on the Law of Torts 32, at 181 n.67 (5th ed. 1984)
(noting that adult-activity exception for automobiles did not
apply to activities involving firearms). For earlier cases
declining to apply an adult standard of care to juveniles
involved with firearms prior to the development of the adult-
activity exception outlined in the Restatement (Second) of Torts,
see Stephan v. Marlin Firearms Co., 353 F.2d 819, 824-25 (2d Cir.
1965) (applying Connecticut law); Chaddock v. Tabor, 72 N.W.
1093, 1095 (Mich. 1897); Zamora v. J. Korber & Co., 278 P.2d 569,
571 (N.M. 1954); Kuhns v. Brugger, 135 A.2d 395, 401-02 (Pa.
1957).
40 578 P.2d 399 (Or. 1978).
41 Id. at 401.
42 Id. at 403.
43 Id.
44 Id.
45 Id.
46 Restatement (Third) of Torts: General Principles 8
(Discussion Draft 1999).
47 Id. 8 cmt. f.
48 Id. 8 cmt. g. See also Purtle, 474 S.W.2d at 125
(recognizing the fact that a measure of financial responsibility
is required to drive cars in its decision declining to extend an
adult standard of care to an accidental shooting by a juvenile
while hunting).
49 Restatement (Third) of Torts: General Principles,
supra, 8 cmt. g.
50 In re S.W.T., 277 N.W.2d at 514.
51 Id.
