              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.
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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
                                     3

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.       The State

appealed.
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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 lesser-

included 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
                                     5

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,
                                         6

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
                                     7

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 lesser-

included 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 lesser-

included 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.
                                           8

      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.      We must determine whether, under Iowa Code section




      1Iowa   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.
                                           9

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
                                         11

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.”             In re

J.D.S., 436 N.W.2d 342, 344 (Iowa 1989).                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.

       3Discretionis 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 lesser-

included 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.
