In the Matter of the Welfare of: J.L.L., Child.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-178

 

In the Matter of the Welfare of:

J.L.L., Child.

 

Filed August 29, 2000

Affirmed

Amundson, Judge

 

Cottonwood County District Court
File No. J59950106

 

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

David P. Honan, Cottonwood County Attorney, 900 Third Avenue, Windom, MN 56101 (for respondent)

 

                      Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

AMUNDSON, Judge

 

             Appellant challenges an order certifying him to stand trial as an adult on charges of first-degree and second-degree criminal sexual conduct.  In doing so, he argues that, in a presumptive certification case, the district court erred in finding that he failed to rebut the presumption where he had only one prior delinquency and expert testimony indicated he did not have lengthy programming history and that programming available in the juvenile system under extended juvenile jurisdiction was adequate to serve public safety.  Appellant also argues that the district court's written order was only conclusory and inadequately supported the certification.  We affirm.

FACTS

For the purposes of this appeal, the following facts are presumed true.  See In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989) (stating that in a certification hearing the charges against the child are presumed true).  On June 13, 1999, appellant J.L.L., a 17-year-old male, called A.E., a 14-year-old female, to invite her to come over and join him and some of his friends to watch videos.  After receiving permission from her mother, A.E. went to the apartment of J.L.L.'s family.  A.E. noticed that J.L.L. was the only one present and asked where the others were.  J.L.L. admitted that he had lied about their presence, told her that they were the only ones there, and joined her on a couch.  The two had been watching television for a while, when J.L.L. lay down and eventually convinced A.E. to lie down behind him.

A.E. complained that she could not see the TV, and J.L.L. turned to face her and began making sexual advances.  At first, A.E. resisted by trying to reason with him, but J.L.L. became more aggressive and was able to pull her pants and underwear down.  A.E. struggled against J.L.L., pushing and hitting him, but J.L.L. forced sexual intercourse with her.

When J.L.L. spent himself, A.E. replaced her pants and quickly called her mother for a ride home.  As A.E. stood outside crying, J.L.L. apologized repeatedly and excused his conduct by saying he was "stoned." This incident occurred less than six days after J.L.L. was placed on probation following the serious physical assault of another juvenile.

Approximately one month after the assault, J.L.L., in the company of others, drove by A.E. as she was standing outside a restaurant with some friends.  J.L.L. and his companions taunted her, calling her a "whore" and "slut."  As a result of the attack and related events, A.E. became extremely despondent and suicidal.  After her parents learned of her suicidal thoughts, they arranged for A.E. to speak to a counselor, to whom she disclosed the attack.

On September 2, 1999, a petition was filed alleging that J.L.L. was a delinquent child for committing two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (1998) and one count of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, Subd. 1(e)(i) (1998).  J.L.L. initially denied having contact with A.E. on the night of the assault, but when faced with DNA testing, J.L.L. acknowledged limited sexual contact, but denied intercourse or rape.  Two months later, J.L.L. admitted to having brief, consensual intercourse with A.E.

The state sought to have J.L.L. certified as an adult.  As part of the certification proceedings, J.L.L. produced two witnesses, Elaine Lolkus, J.L.L.'s probation officer, and Dr. James Gilbertson, the psychologist who evaluated J.L.L.  Lolkus explained that J.L.L. had completed all of the requirements of his probation on a third-degree assault conviction except for an anger-management class that had not yet been offered.  Lolkus also told the court that J.L.L. had previously had virtually no contact with counseling programs and listed at least three programs that she thought could adequately punish and treat J.L.L.  Lolkus stated she had no objection to the court designating J.L.L.'s case as an extended juvenile jurisdiction case.  She believed that J.L.L. was amenable to programming and could be effectively treated in the juvenile system.  Gilbertson noted that J.L.L. was very honest, had a difficult time controlling his anger and sexuality, and suffered from impulse control disorder, but that he did not exhibit the traits of a sexual predator.  Gilbertson felt that J.L.L. could be treated (he described him as "salvageable"), but concluded that, given the presumption of certification here, it was not clear that J.L.L. should remain under the jurisdiction of the juvenile system.

The district court certified J.L.L. to stand trial as an adult.  This appeal followed.

D E C I S I O N

The juvenile court has broad authority in determining whether a juvenile should be certified for trial as an adult.  Such a determination will not be reversed unless the juvenile court's findings are so erroneous as to constitute an abuse of discretion.  In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).

Once a juvenile court determines that there is probable cause to believe that the child committed the alleged offense, the prosecution may establish a presumption of certification if:

(1)              the child was 16 or 17 years old at the time of the offense; and

(2)              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 (1998) (repealed and moved, 1999).  There is no dispute that J.L.L. was subject to presumptive certification.  Once the presumption is established, it may only be overcome if the juvenile produces clear and convincing evidence that retaining the proceeding in juvenile court serves the public safety.  Id.  In determining whether public safety is served, the court must be guided by six factors:

(1)              the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, * * * and the impact on any victim;

(2)              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;

(3)              the child's prior record of delinquency;

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

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

(6)              the dispositional options available for the child.

Minn. Stat. § 260.125, subd. 2b (1998).  Courts are to give greater weight to the first and third factors than to the other factors listed.  Id.

Seriousness of Offense

J.L.L. suggests that the juvenile court did not have a valid basis for concluding that the alleged offense was serious.  But rape has clearly been found to be "a serious crime in terms of community protection."  In re Welfare of J.R.D., 342 N.W.2d 162, 166 (Minn. App. 1984), review denied (Minn. Mar. 15, 1984).

Additionally, there are several aggravating factors that apply to this case.  The victim was only 14 years old.  See State v. Frank, 416 N.W.2d 744, 748 (Minn. App. 1987) (finding a 16-year-old victim to be vulnerable due to her age), review denied (Minn. Feb. 8, 1988).  Additionally, J.L.L. showed a lack of remorse by publicly taunting A.E.  See State v. Lewis, 385 N.W.2d 352, 357 (Minn. App. 1986) (describing lack of remorse as an appropriate departure factor), review denied (Minn. May 29, 1986).

Finally, there was evidence that the impact on the victim was significant.  In fact, the only reason this case was reported is because A.E. sought counseling for her post-assault depression and suicidal tendencies.

Prior Delinquency

J.L.L. also asserts that his prior record of delinquency was minimal.  But it is clear that, shortly before the alleged sexual assault, J.L.L. was placed on probation for a third-degree assault.  J.L.L. relies on the fact that he had only one prior delinquency adjudication.  But he fails to adequately distinguish the similarity of the prior adjudication or account for its propinquity to this alleged sexual assault.  Indeed, considering the prior delinquency, Dr. Gilbertson noted that J.L.L.'s juvenile records suggest some emergent pattern of inability to regulate anger and sexuality, and the use of force and intimidation to overpower individuals.

Other Factors

J.L.L. contends that he has no substantial history of counseling and that this militates for extending the jurisdiction of the juvenile court.  And both Gilbertson and Lolkus noted that J.L.L. might be helped though involvement in the counseling program available in the juvenile system.  They also testified that such a course of action would adequately serve the public safety.  But these factors are less important than the serious nature of the offense charged and J.L.L.'s prior recordtwo factors that weigh heavily in favor of certification.  Furthermore, J.L.L.'s culpability is clear.  Despite his sympathetic testimony, Dr. Gilbertson was unable to state that the evidence clearly established that J.L.L. should remain in the juvenile system.   Given the relative importance of the different statutory factors, the juvenile court acted well within its discretion in determining that J.L.L. had not overcome the presumptive certification in this case.

J.L.L. also argues that the juvenile court's written findings supporting certification were inadequate.  Indeed, the district court's only finding with regard to the propriety of certification is the conclusory statement that,

the child has failed to show by clear and convincing evidence that retaining the proceedings in the juvenile court would serve the public safety.

This court has noted that, in juvenile disposition hearings, "[w]ritten findings are essential to enable meaningful appellate review." In re Welfare of M.A.C., 455 N.W.2d 494, 499 (Minn. App. 1990).  But here, the presumption favors certification, and given the undisputed posture of this case, written findings, while preferred, are not essential to our understanding of the juvenile court's rationale.  J.L.L. is within the age range provided in the statute, and the alleged crime is of sufficient seriousness.  In placing the burden of persuasion on defendant, the legislature has deemed public safety to be the dominant concern in cases such as this.  In re Welfare of L.J.S. and J.T.K., 539 N.W.2d 408, 413 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996).  Reviewing the record, it is clear that specific written findings would only buttress the district court's already adequate assessment of the insufficiencies of J.L.L.'s challenge to the certification.

            Affirmed.