In the Interest of D.S., Minor Child, D.S., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 3-1253 / 13-0888
Filed April 16, 2014
IN THE INTEREST OF D.S.,
Minor Child,
D.S., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Alan D. Allbee,
Associate Juvenile Judge.
A minor child appeals from delinquency adjudication and disposition
orders. REVERSED AND REMANDED.
John Slavik and Thais A. Folta of Elwood, O’Donohoe, Braun & White,
L.L.P., Charles City and Cresco, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Jill Kistler, County Attorney, for appellee.
Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.
D.S. appeals from her adjudication as delinquent based on conduct that
would constitute harassment under Iowa Code section 708.7(1)(b) (2013) if she
were an adult. She contends the State’s delinquency petition should have been
dismissed because the speech act for which she was adjudicated delinquent was
constitutionally protected and because the juvenile court’s findings and
conclusions were insufficient to find she committed harassment. We reverse the
adjudication and remand.
I.
On February 20, 2013, three high school classmates got off a school bus
on the way home after school. After exiting the bus, D.S. yelled, “T-Bitch,” to get
the attention of her friend T.B. The victim in this case, also having the initials
T.B., thought D.S. was yelling at her so she turned around and said “what?” to
D.S. D.S. replied to the victim, “I wasn’t talking to you, you fat, skanky bitch. I’m
way better than you and prettier than you, and I’m not desperate like you to sleep
with the bus driver.” The victim replied, “I don’t care about looks, at least I have a
heart.” D.S. and the victim were approximately ten feet from each other during
this exchange. D.S.’s friend than approached D.S. and said, “let’s go.” The two
left the scene and went to D.S.’s house. The victim was hurt by these words and
went home and cried, reporting the incident to her mother.
On March 11, the State filed a petition alleging D.S. committed a
delinquent act based on violation of Iowa Code sections 708.7(1)(b) and
708.7(4), harassment in the third degree. D.S. filed a motion to dismiss,
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contending the theories of harassment alleged in the petition violated her
protected speech rights and contending the statute is impermissibly vague. On
May 10, the court filed its findings, conclusions, and order (delinquency
adjudication). The juvenile court denied the motion to dismiss and found D.S.
committed the delinquent act alleged. On May 30, the court filed its disposition
order, placing D.S. on probation and ordering community service.
II.
Review of delinquency proceedings is de novo. See In re A.K., 825
N.W.2d 46, 49 (Iowa 2013). Although we give weight to the factual findings of
the juvenile court, especially regarding the credibility of witnesses, we are not
bound by them. See In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). To the
extent the claim involves statutory construction, our review is for correction of
errors of law. See In re N.N.E. 752 N.W.2d 1, 6 (Iowa 2008); In re R.E.K.F., 698
N.W.2d 147, 149 (Iowa 2005).
III.
Delinquency proceedings are special proceedings that serve as an
alternative to the criminal prosecution of a child. See In re J.A.L., 694 N.W.2d
748, 751 (Iowa 2005). The objective of the proceedings is the best interests of
the child. See id.; 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). We presume the
child is innocent of the charges, and the State has the burden of proving beyond
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a reasonable doubt that the juvenile committed the delinquent act. See Iowa
Code § 232.47(10).
D.S. contends the court’s findings of fact and conclusions of law were
insufficient to find the child committed harassment. This claim implicates both
the factual findings of the court and the court’s construction of the statute. As
relevant here, the juvenile court made the following findings of fact:
[D.S.] and [the victim] have known each other since kindergarten
and have lived near each other in [a small town] for that entire time.
[D.S.] claims she and [the victim] were friends until they entered the
third grade. [The victim] claims a history of ill will between [D.S.]
and her. [The victim] claims one physical altercation with [D.S.] that
occurred two years ago. [The victim] claims that [D.S.] has
frequently made mean and hurtful comments to her.
. . . [D.S.]’s comments directed toward [the victim] had no
legitimate purpose. [D.S.]’s comments were intended to be a “put
down” to [the victim]. This “put down” was intended by [D.S.] to
make [the victim] lack self-confidence in her relations with the
opposite sex and about her body-build. It is not reasonable to
believe that [the victim] anticipated any physical harm or threat of
physical harm from [D.S.] who is substantially shorter and weighs
less than [the victim]. [The victim] testified that she was not
threatened by [D.S.] during their encounter on February 20, 2013.
[The victim] was not in apprehension of imminent physical harm
during this encounter either. [The victim]’s reaction was to return
home upset and crying despite her effort to respond to [D.S.]. This
incident was the culmination of a number of likely similar incidents.
[The victim]’s mother had finally “had enough” and sought
assistance from local law enforcement. While schools are required
to deal with bullying incidents at school, it is up to local law
enforcement and the community to deal with such incidents
occurring off school property as occurred here.
With respect to the law, Iowa Code section 708.7(1)(b), provides:
A person commits harassment when the person, purposefully and
without legitimate purpose, has personal contact with another
person, with the intent to threaten, intimidate, or alarm that other
person. As used in this section, unless the context otherwise
requires, “personal contact” means an encounter in which two or
more people are in visual or physical proximity to each other.
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“Personal contact” does not require a physical touching or oral
communication, although it may include these types of contacts.
(Emphasis added). The statute does not define the terms “threaten, intimidate,
or alarm.” The juvenile court defined them as follows:
“Threaten” means “to utter threats against.” “Threat” means
an expression of an intention to inflict evil, injury, or damage.
Webster’s Ninth Collegiate Dictionary (1998), pages 1228-1229.
“Intimidate” means “to make timid or fearful.” [Id.] page 634.
“Timid” means “lacking in courage or self-confidence.” Id. at 1236.
“Alarm” means “a sudden sharp apprehension and fear
resulting from the perception of imminent danger.” [Id.] page 68.
Applying the facts to the law, the court concluded the “facts found are
sufficient to establish that the State did prove beyond a reasonable doubt that the
child in interest did commit the delinquent act alleged in the Petition.” It is clear
from the findings that the court did not reach this conclusion relying on the
“threat” or “alarm” alternatives in the harassment statute. The court specifically
found there was no threat and there was no apprehension of physical threat or
harm. Of necessity, the court must have reached its conclusion that the State
proved harassment by relying on the interpretation of “intimidate” as affecting a
person’s self-confidence and the finding that D.S.’s statements were intended to
make the victim “lack self-confidence in her relations with the opposite sex and
about her body-build.”
We conclude the district court’s definition of “intimidate” is erroneous. The
juvenile court correctly noted the general principle that we give words used in a
statute their ordinary meaning absent any legislative definition. See State v.
White, 545 N.W.2d 552, 555-56 (Iowa 1996); see also State v. Romer, 832
N.W.2d 169, 176 (Iowa 2013). Applying that principle, the juvenile court
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concluded that “intimidate means to make timid or fearful” and then bootstrapped
the definition of “timid” to conclude that “intimidate” means to make one lack self-
confidence. This definition strikes us as not the ordinary meaning of the word
“intimidate.” The juvenile court cited no case authority in support of this
interpretation. We could find none. It seems to us the common meaning of
“intimidate” is to “inspire or affect with fear” or to frighten. See Webster’s Third
New International Dictionary 1184 (1993) [“Webster’s”]; see also Meuser v.
Federal Express Corp., 564 F.3d 507, 516 (1st Cir. 2009) (defining “intimidation”
as to put another in fear); State v. Hines, 471 S.E.2d 109, 114, (N.C. Ct. App.
1996) (defining intimidate as frighten).
In addition to not comporting with the common understanding of the word
“intimidate,” the juvenile court’s interpretation isolates the relevant word and
takes it out of its structural and syntactic context. See In re Estate of Melby, 841
N.W.2d 867, 879 (Iowa 2014) (“When construing statutes, we assess not just
isolated words and phrases, but statutes in their entirety, and we avoid
constructions rendering parts of a statute redundant, irrelevant, or absurd.”);
Dingman v. City of Council Bluffs, 90 N.W.2d 742, 749 (Iowa 1958) (stating that
error can be committed by trying to define meaning “from an isolated word taken
out of context”). First, the charged offense is contained within chapter 708,
governing assaults, signaling the charged offense encompasses something more
than words or conduct intended to make the victim feel less confident in herself.
Second, the juvenile court’s interpretation ignores the words immediately
surrounding the word “intimidate.” See Peak v. Adams, 799 N.W.2d 535, 547-48
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(Iowa 2011) (providing “the meanings of particular words may be indicated or
controlled by associated words”). Within the statutory text, “intimidate” follows
the word “threaten” and precedes the word “alarm” in a series of associated
words. See Iowa Code § 708.7(1)(b). Both “threaten” and “alarm” denote the
creation of fear of injury or harm. See State v. Evans, 671 N.W.2d 720, 724
(Iowa 2003) (defining alarm “to cause (someone) to feel frightened, disturbed, or
in danger”); see also Meuser, 564 F.3d at 516 (defining “threat” to mean “to make
another fearful or apprehensive of injury or harm”). The canon of construction
noscitur a sociis provides that associated words in a series should carry the
same or similar denotations. Stated differently, the canon provides that “words of
a feather flock together.” See Mall Real Estate, L.L.C. v. City of Hamburg, 818
N.W.2d 190, 202 (Iowa 2012) (citation omitted). Here, the canon compels the
conclusion that “intimidate” should be construed similarly to “alarm” and
“threaten.”
Finally, we typically construe statutes to avoid constitutional infirmity
where possible. See Simmons v. State Pub. Defender, 791 N.W.2d 69, 88 (Iowa
2010); see also White, 545 N.W.2d at 557. The district court’s interpretation of
the word “intimidate” creates constitutional concerns implicating free speech
rights and due process rights regarding vagueness. To avoid potential
constitutional infirmity, “[i]ntimidation in the constitutionally proscribable sense of
the word is a type of true threat, where the speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear of bodily harm or
death.” Virginia v. Black, 538 U.S. 343, 360 (2003).
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For the foregoing reasons, the district court erred in concluding that
“intimidate,” as used within Iowa Code section 708.7(1)(b), means to make
another feel less confident in her relationships with others and less confident in
her body-build. Instead, the common and ordinary meaning of intimidate and the
canons of construction dictate the conclusion that “intimidate” means to “inspire
or affect with fear” or to “frighten.” See Webster’s at 1184.
In conducting de novo review of the record, we conclude the State failed
to prove beyond a reasonable doubt that D.S. committed harassment, properly
defined, under any theory of the statute. D.S.’s call for “T-bitch” was not directed
to the victim, thereby indicating there was no intent to threaten, alarm, or
intimidate the victim. Other testimony showed that D.S. did not intend to alarm,
intimidate, or threaten the victim. The testimony showed that D.S. did not, in fact,
alarm, intimidate, or threaten the victim. While D.S.’s words may have been
childish, rude, and even hurtful, they do not rise to the level of harassment.
Because our resolution of D.S.’s challenge to the sufficiency of the
evidence and the juvenile court’s interpretation of the statute is dispositive of the
appeal, we need not address her constitutional claims. See In re S.P., 672
N.W.2d 842, 846 (Iowa 2003) (declining to address constitutional issues when
statutory analysis resolved the appeal). We reverse the juvenile court’s
adjudication of D.S. as a delinquent and remand for dismissal of the delinquency
petition.
REVERSED AND REMANDED.