In the Matter of the Welfare of: A.Z., Child.

In the Matter of the Welfare of: A.Z., Child. A05-2293, Court of Appeals Unpublished, November 20, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2293

 

In the Matter of the Welfare of:

A.Z., Child

 

Filed November 20, 2006

Reversed

Randall, Judge

 

Olmsted County District Court

File No. J7-05-50553

 

John Stuart, State Public Defender, Sara Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Karen A. Arthurs, Sr. Assistant County Attorney, 151 Fourth Street Southeast, Third Floor, Rochester, MN 55904 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and  Kalitowski, Judge.

 

U N P U B L I S H E D    O P I N I O N

RANDALL, Judge.

A.Z. appeals the district court's order certifying him to stand trial as an adult, claiming that he provided clear and convincing evidence that retaining him in the juvenile system under extended juvenile jurisdiction would serve public safety and best rehabilitate him.  Because the evidence in the record fails to support the district court's conclusion that public safety would not be served by retaining A.Z. in the juvenile system, we reverse.

FACTS

 

            On June 18, 2005, A.Z., 16 years old, and four older males went to a house where the alleged victim, 15-year-old E.C., was babysitting.  E.C. and one of the males, her 20-year-old boyfriend, went upstairs and engaged in "consensual" sexual intercourse.  The boyfriend then allegedly invited the four other males upstairs.  The four friends, including A.Z., allegedly engaged in forced oral and vaginal intercourse with E.C. while her boyfriend held her down.  Later that evening, while back downstairs, A.Z. leaned E.C. over the couch and allegedly had anal intercourse with her.  Before appellant left the house, E.C. allegedly asked for A.Z.'s phone number which he gave her.

            Later that same evening, E.C. left a phone message for her boyfriend referring to the events that had transpired.  In the message, E.C. stated that she still loved her boyfriend, that she "was still happy," and that "it was fun tonight."  Further, E.C. questioned why her boyfriend had left so soon, stating that he was "the main person [E.C.] wanted to f--k tonight and not everybody else."  E.C. claimed she was being sarcastic in the message and wanted to elicit feelings of jealousy in her boyfriend.

            A.Z. moved from Bosnia to the United States approximately one year prior to the offenses to live with his father.  A.Z. subsequently taught himself English and excelled in his high school classes.

            On June 21, 2005, the state charged A.Z. by Delinquency Petition in Olmsted County Juvenile Court with having committed:  count I, aiding and abetting criminal sexual conduct in the first-degree, in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2004); count II, aiding and abetting criminal sexual conduct in the first-degree in violation of Minn. Stat. § 609.342, subd. 1(f)(i) (2004); and count III, aiding and abetting criminal sexual conduct in the third-degree in violation of Minn. Stat. § 609.344, subd. 1(c) (2004).  The state sought certification of A.Z. to adult court for these offenses. 

            Travis Gransee, the probation officer conducting the certification study, recommended adult certification.  Based on the various interactions Gransee had with A.Z., including phone conversations, in-person interviews, and home and school visits, Gransee found appellant to be well-spoken and articulate to the extent that he thought A.Z. would be able to "sneak through" juvenile sex offender treatment without having to alter his current way of thinking.  Gransee found A.Z. amenable to treatment.  However, he felt adult treatment would be more appropriate since, in Gransee's opinion, A.Z. is more influenced by adults.  Gransee believed it was the time spent outside of his office that provided the most insight on A.Z., insights the experts testifying at trial were not privy to.  Based on these interactions,  Gransee believed A.Z. to be a threat to public safety. 

            In contrast, the two experts testifying at trial recommended extended juvenile jurisdiction ("EJJ").  Michael O'Brien, a licensed psychologist, interviewed A.Z., performed a psychosexual assessment, and conducted a personality interview.  O'Brien found A.Z. to
be amenable to treatment.  After finding that the following risk factors were not present in A.Z.'s history, O'Brien "evaluated [appellant] as being relatively low risk to reoffend":  (1) previous commission of sexual offense; (2) history of other criminal behaviors; (3) indicators of other mental illness; (4) low mental functioning; and (5) having been a victim of sexual abuse.

            Roger Carten, a licensed psychologist, found that A.Z. does not suffer from any mood, thought, or anxiety disorders.  Further, Carten found A.Z. not to be a general risk to public safety and potentially amenable to treatment.  In short, Carten recommended EJJ.  Assuming appellant is able to enter EJJ now, Carten feels "there would be plenty of time" for treatment with favorable results.

D E C I S I O N

            Under Minnesota Statute § 260B.125, subd. 1 (2004), a juvenile alleged to have committed an offense that would be a felony if committed by an adult may be certified as an adult.  Certification is presumed for an offense committed by a child 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. § 260B.125, subd. 3 (2004).  Here, appellant was 16 years old at the time of the offenses and the charged offenses carry a presumptive commitment.

            The presumption of certification is rebuttable by the juvenile.  Minn. Stat. § 260B.125, subd. 3 (2004).  To rebut the presumption, the juvenile must show, by
clear and convincing evidence, that retaining the proceeding in the juvenile court serves public safety.  Id.  "Clear and convincing" evidence is evidence that is unequivocal, uncontradicted, and intrinsically probable and credible.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).  The clear-and-convincing standard "requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt."  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). 

            By statutory mandate, the following six factors must be considered when determining whether to certify a juvenile for adult prosecution:

(1) 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;
(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. § 260B.125, subd. 4 (2004).  Greater weight must be given to factors (1) and (3), the seriousness of the offense and the juvenile's prior record of delinquency, respectfully.  Id.  For purposes of certification, the juvenile is presumed guilty of the alleged offenses.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).  We review a district court's designation of a proceeding as an EJJ prosecution for clear error.  In re Welfare of D.M.D., Jr., 607 N.W.2d 432, 437 (Minn. 2000). 

            The parties do not dispute that appellant falls within the presumption of certification.  Instead, appellant argues that the district court's conclusion, that public safety would not be served if appellant were retained in the juvenile system, lacks evidentiary support.  Further, appellant argues he met his burden of rebutting the presumption of certification by clear and convincing evidence.

(1)   Seriousness of the alleged offense

            When considering the seriousness of the offense, the district court considers whether there were any aggravating factors.  U.S., 612 N.W.2d at 195.  The district court found the following aggravating factors:  (1) appellant allegedly committed the crime as part of a group of three or more persons who all actively participated in the crime, under Minn. Sent. Guidelines II.D.2.b.(1); (2) the victim was vulnerable after having allegedly been sexually assaulted by several other men, under Minn. Sent. Guidelines II.D.2.b.(1); and (3) appellant allegedly had forced intercourse with the victim twice.  Consequently, the district court found A.Z. to have engaged in "an extremely serious ‘person' offense."  However, A.Z. argues that this first factor should be viewed as "neutral" towards appellant's certification.  We agree.  Although the charges are serious, some of the undisputed facts are objective indications that this was not a classic rape situation.  Culturally, A.Z. was still learning what was socially acceptable behavior.  A.Z. acknowledged that in Bosnia people cannot have sex prior to marriage but was told that in the United States girls are more open.  E.C.'s later phone call to her boyfriend and the "reasonable inferences [A.Z.] could draw from the alleged victim's reactions to the sexual advances and activity," lessen the impact of this factor on the overall assessment of whether certification is appropriate.

(2)   Culpability of the child

            The district court found: (1) appellant admitted to engaging in sexual intercourse with the alleged victim; (2) despite his youth, appellant (16-years-old at the time of the charged offenses) is responsible for his behavior; (3) appellant was a willing participant in the crime; and (4) appellant acknowledged that if E.C.'s statements are accurate his behavior would be considered wrong. 

            A.Z. admits engaging in sexual intercourse with the alleged victim; however, he maintains that the sex was consensual.  A.Z. offers several explanations for his belief that the activity was consensual, including that the room was dark, he did not see anyone restraining E.C.; he did not hear E.C. say no, cry, whimper, or yell; and he claims E.C. did not resist.

(3)   Child's prior record of delinquency

            It is undisputed that A.Z. did not have a prior record of delinquency.  The district court assumed, since A.Z. was present in the United States for only a year at the time of the alleged offenses, that A.Z. did not possess a delinquency record in Bosnia.  This factor, carrying greater weight, weighs against certification.

(4)   Child's programming history

            It is undisputed that A.Z. did not have a programming history.  The district court noted further that "nothing on this record indicates A.Z. would be unable or unwilling to participate meaningfully in rehabilitative programming."  This factor also weighs heavily against certification.

(5)   Adequacy of punishment or programming available

            All parties agreed that A.Z. is amenable to treatment.  The district court's concern, however, was that an EJJ disposition was "not an adequate punishment."  We disagree.  Under EJJ, A.Z. must remain squeaky clean until he reaches age 21.  A.Z. would be required to successfully complete all aspects of his EJJ disposition, to be determined later, obeying what could be some fairly onerous conditions of probation, and in all respects be law abiding.  If A.Z. failed to do so he would serve an adult sentence.

            Gransee, believing A.Z. to be a threat to public safety, felt that A.Z.'s "intelligence" and "well-spokeness" would permit him to glide through the juvenile program without altering his thinking.  Finding A.Z. to be influenced more by adults, Gransee felt treatment with a group of men, rather than a group of boys, plus the additional time available in the adult system, would be most beneficial.  Although Gransee, as the probation officer, is entitled to his opinion, nothing in the record indicates that he is an expert on certification.

            In contrast, O'Brien and Carten, the experts who testified at trial, recommended EJJ.  Specifically, O'Brien recommended outpatient treatment, including individual, group and family sessions.  O'Brien and Carten both stated that the optimum time for treatment is as soon after the commission of the crime as possible.  Both were opposed to the adult system because A.Z. would not receive treatment until the end of a prison term, if at all.  O'Brien, feeling that A.Z. was not at high risk to reoffend, was not concerned that A.Z. had yet to accept criminal responsibility.  In O'Brien's view, this was common with sex offenders with
treatment eventually yielding an admission.  Moreover, although for purposes of adult certification the juvenile's guilt is presumed, an admission of guilt is not a condition precedent or requirement for EJJ.

            Several potential EJJ programming options for A.Z. were discussed, with the court finding "no particular deficiencies in the juvenile treatment options."  We agree.  EJJ is more appropriate, especially recognizing that A.Z. must maintain a squeaky clean record until turning 21.

(6)   Dispositional options available for the juvenile

            It is agreed that two dispositional options are available: (1) retain the child in the juvenile system as an extended jurisdiction juvenile (retaining A.Z. in the juvenile system without the EJJ designation is not available in a presumptive certification case.  Minn. Stat. § 260B.125, subd. 8 (2004), or (2) certify him for trial as an adult. 

            We conclude as a matter of law that EJJ is the proper designation.  We reverse the decision of the district court to certify A.Z. as an adult. 

            Reversed.