Helen Fraser, Appellant, vs. Phillips Investment Company, d/b/a Park Tavern Lounge & Lanes, et al., Respondents.

may not be cited except as provided by

Minn. Stat. §480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-1343

In the Matter of the Welfare of:

A.M.R.

Filed April 14, 1998

Affirmed

Amundson, Judge

Hennepin County District Court

File No. J2-97-052701

John M. Stuart, Minnesota State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, State Attorney General, 102 State Capitol, St. Paul, MN 55155, Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.

UNPUBLISHED OPINION

AMUNDSON, Judge

A.M.R. challenges the district court's decision that he failed to rebut the presumption of certification by clear and convincing evidence. Since A.M.R. failed to meet the burden that retaining the proceeding in the juvenile court serves public safety. We affirm.

FACTS

On March 4, 1997, a petition was filed in Hennepin County Juvenile Court stating that on January 27, 1997, S.M., a juvenile female, was invited to A.M.R.'s St. Louis Park residence. S.M. was lured into the bathroom to talk with another juvenile male. When A.M.R. entered the bathroom, the other male left. S.M. said that after A.M.R. was unsuccessful in trying to convince her to have consensual sex with him, he forced her to her knees and had her perform felatio and then undressed her and had intercourse with her without her consent. A.M.R. was charged with two counts of third-degree criminal sexual conduct. The state filed a motion for adult certification.

On March 10, 1997, the juvenile court found probable cause to support the petition and ordered a psychological evaluation and reference study of A.M.R. prior to the certification hearing. The certification study was prepared by Tim Turrentine, an investigating probation officer for Hennepin County, and the psychological evaluation was completed by the court-appointed psychologist, Dr. Mary Kenning. The certification study described A.M.R. as "Risk Level High" and recommended certification to adult court because he would require supervision beyond his 21st birthday. The juvenile court ruled that the state had established a presumption of certification, pursuant to Minn. Stat. § 260.125, subd. 2a (1996), because A.M.R. was 16 years old at the time of the offense and under the Minnesota Sentencing Guidelines, the presumptive adult sentence for this offense is 48 months. Because the presumption had been established, the state called no witnesses.

A.M.R. presented the testimony of Dr. Mary Kenning, a senior clinical psychologist with Hennepin County Psychological Services, who was appointed by the court to evaluate him. Dr. Kenning concluded that the public safety would be better served if A.M.R. was treated as an Extended Jurisdiction Juvenile (EJJ) rather than certified as an adult. Dr. Kenning, however, admitted that she was unaware that this was a presumptive certification case when she made her report.

A.M.R. also presented the testimony of Dr. James Gilbertson, a licensed psychologist, who evaluated A.M.R. and submitted a report to the court. Dr. Gilbertson found that A.M.R.'s prior record was not so varied or severe that it would prevent him from being amenable to treatment in the juvenile system. While A.M.R. failed at two previous school programs, Dr. Gilbertson highlighted A.M.R.'s success at St. Croix Camp, indicating that he could succeed in treatment, despite prior difficulties. Dr. Gilbertson agreed with Dr. Kenning's assessment that A.M.R. showed no significant problem areas according to his psychological tests, but he concluded that A.M.R. had distorted ideas about women and sex.

The district court ruled that A.M.R. had not rebutted the presumption of certification and granted the state's motion. This appeal followed.

D E C I S I O N

This court will not reverse a juvenile court order of certification unless the findings of fact supporting that order are "clearly erroneous so as to constitute an abuse of discretion." In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).

The Juvenile Code pertaining to certification for older and more serious offenders creates a presumption of certification if:

the child was 16 or 17 years old at the time of the offense; and the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes * * *.

Minn. Stat. § 260.125, subd. 2a (1996). A.M.R. concedes that his age (then 16) coupled with the severity of the charged offenses (two counts of third-degree criminal sexual conduct) create a presumption of certification to adult court. A.M.R. had the burden to rebut the presumption "by clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety." Minn. Stat. § 260.125, subd. 2a. The juvenile court found that A.M.R. failed to meet his burden. The court, therefore, had no option but to certify the proceeding. See Minn. Stat. § 260.125, subd. 2a ("If the court finds that the child has not rebutted the presumption by clear and convincing evidence, the court shall certify the proceeding.").

Here, the juvenile court concluded as a matter of law that A.M.R. "failed to rebut the presumption of certification by clear and convincing evidence." Where experts are in conflict, this court will "defer to the juvenile court's credibility determinations." In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996).

The factors to be considered by the court in determining whether public safety will be served by certification include:

the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;

the culpability of the child in committing the alleged offense, including the level of the child's participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;

the child's prior record of delinquency;

the child's programming history, including the child's past willingness to participate meaningfully in available programming;

the adequacy of punishment or programming available in the juvenile justice system; and

the dispositional options available for the child.

In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to the other factors listed in this subdivision.

Minn. Stat. § 260.125, subd. 2b (1996). For purposes of a certification hearing, the court must accept allegations in the petition as true. In re Welfare of A.N.J., 521 N.W.2d 889, 893 (Minn. App. 1994), review denied (Minn. Nov. 29, 1994).

Seriousness of the alleged offense

The juvenile court emphasized that A.M.R. worked in concert with codefendant, I.O, who lured the victim into A.M.R.'s bathroom. Thereafter, by force and physical intimation, A.M.R. pushed the victim to the floor, forced her to perform felatio and ejaculated in her mouth. He then removed her clothing and had sexual intercourse with her. Afterwards, as the victim was crying, naked, and fearful, A.M.R. said, "Whatever, b----," and left.

A.M.R.'s conduct, if proven, could mandate doubling the presumptive sentence under Minnesota statute. See Minn. Stat. § 609.346, subd. 4 (1996). Aggravating factors may be present in this case. First, multiple forms of penetration (oral and vaginal) constitute particular cruelty. See Minn. Sent. Guidelines II.D.103.2.b.(2). Second, multiple offenders working in concert (co-offender, I.O., also sexually assaulted the victim; apparently yet another male also facilitated the assaults). See State v. Frank, 416 N.W.2d 744, 749 (Minn. App. 1987), review denied (Minn. 1988) (multiple defendants in sexual assault constitute an aggravating factor). The juvenile court may have also considered the victim's long-term emotional suffering. Specifically, the victim has struggled with depression, suicide ideation, recurring flashbacks, and sleep difficulties. The lasting damage A.M.R. inflicted also makes this a serious offense.

Culpability of the Child in Committing the Alleged Offense

Minnesota statute defines the meaning of "culpability" as: the level of "participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines." Minn. Stat. § 260.125, subd. 2b(2).

In its order, the juvenile court stated:

[A.M.R.] is completely responsible for the offense. It appears from the facts of this case and [A.M.R.'s] delinquent history, that there was some amount of calculation and planning that took place in getting the victim to [A.M.R.'s] house and into the bathroom where [A.M.R.] then proceeded to use force to sexually assault her. After sexually assaulting the victim twice and seeing her lying on the floor naked and crying, [A.M.R.] said, "Whatever, b----," and left. [A.M.R.] had several opportunities to stop his behavior and consider the victim, but he acted on his impulses instead. In his comments to the psychologists after the incident, [A.M.R.] showed no remorse or empathy and, in fact, made more disparaging comments about her, calling her "weird looking" and a "slut."

In response, A.M.R. points to the testimony of two psychologists who opined that A.M.R. evidenced a pattern of opportunistic offending, rather than predation. The proper focus for this case is on A.M.R.'s culpability in this offense. Furthermore, the psychologists' opinion merely speaks to A.M.R.'s tendency to victimize those who wander into his social circle, rather than those who are total strangers. Although A.M.R. may be less dangerous to the public at large, he remains potentially very dangerous to young women he encounters socially.

Child's Prior Record of Delinquency

Because the statute refers to "record" of delinquency, and not "adjudication" of delinquency, it is appropriate to consider A.M.R.'s entire "record" of delinquent behavior under this factor. This court strictly applies the meaning of the word "record," illustrated by our decision to consider a juvenile's entire history of unadjudicated delinquent behavior as being relevant to show a pattern of conduct. See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).

While A.M.J. has three prior adjudications: gross misdemeanor theft, misdemeanor damage to property, and misdemeanor theft, he also has a significant number of delinquent petitions not resulting in adjudication. He was arrested and charged on two occasions with disorderly conduct. He admitted to a past affiliation with the Crips gang. He was arrested and charged with first-degree burglary and aiding and abetting burglary. He also was suspended from St. Louis Park High School for a sexual offense that was similar to the present offense.

4. Child's Programming History

In its order, the juvenile court noted that A.M.R. was committed to St. Croix Camp in June of 1995, as a result of his first adjudication (gross misdemeanor theft). A.M.R. had a great deal of difficulty adjusting to life at camp. He defied authority and was disrespectful to peers. After completing the program, his problems continued.

A.M.R. unsuccessfully attended West Metro alternative school on two separate occasions. He failed to comply with the day treatment programs at Katahdin and Merrian Park, and was discharged. He was placed on electronic home monitoring, pending the outcome of this proceeding. In addition, as a condition of probation for his prior offenses, he was required to participate at Rainbow Bridge Chemical Dependency Program for his admitted problems with marijuana. He tested positive for marijuana the last nine times he was required to submit for urinalysis. Additionally, because he repeatedly violated the terms of the electronic monitoring, his probation was revoked and he was placed in the juvenile detention center.

The juvenile court completely reviewed A.M.R.'s programming history. Based on the record of repeated programming failures coupled with his lack of motivation, as indicated by both psychologists who testified at the certification hearing, the court properly certified A.M.R. to adult court.

Adequacy of Punishment or Programming Available in the Juvenile Justice System

The juvenile court concluded that the punishment and programming alternative in the juvenile system were inadequate to serve public safety. The court noted that A.M.R. demonstrated a high level of pathology and denial. He denied having any problems that require treatment. His thinking regarding females is markedly distorted, believing that women are sexually interested in him, even when they resist his overtures that are intimidating and coercive. He is disrespectful and wholly lacking in empathy for his victims.

The juvenile court properly considered the adequacy of punishment within the juvenile system. The juvenile court determined that since treatment was also available in the adult system, and the treatment goals for adult and juvenile sex offenders are the same, there is no reason why A.M.R. could not be treated within the adult system.

Dispositional Options Available

The juvenile court found that two long-term residential sex offender treatment programs were available. While treatment is important, A.M.R.'s past record of motivation for treatment has been virtually nonexistent. We conclude that he will be more receptive to treatment within the adult system.

The juvenile court did not abuse its discretion when it concluded that A.M.R. had not rebutted the presumptive certification, by clear and convincing evidence, that retaining him in the juvenile system would serve public safety.

Affirmed.