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

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-2227

 

In the Matter of the Welfare of:

 

J.D.J., Child.

 

Filed July 15, 2003

Affirmed

Harten, Judge

 

Roseau County District Court

File No. J8-02-50105

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN 55414 (for appellant J.D.J.)

 

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

 

Michelle E. Moren, Roseau County Attorney,  606 Fifth Avenue Southwest, Suite 10, Roseau, MN 56751 (for respondent)

 

            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant, age 15, challenges the order certifying him for adult prosecution for a heinous crime.            

FACTS

 

            On the night of 4-5 July 2002, J.J., then age 13, was babysitting two siblings, M.P., a 15-month-old girl, and E.P., a 4-year-old boy.  Police officers, summoned because M.P. required medical attention, took her to a hospital where she was pronounced dead.  An autopsy indicated that she had suffered a serious skull fracture and brain injury, a ruptured gastric wall, a bruised liver and spleen, and vaginal injury resulting from penetration with an object five to six inches long. 

            J.J. was interviewed five times.  She provided much conflicting information; she ultimately explained the conflicts as her efforts to shield one suspect, her brother, appellant J.D.J., then age 14.  In her final account, J.J. said that she, appellant, a man named Curtis Korb, and M.P. were downstairs in the children's residence; that Korb suggested having sex with M.P. and appellant agreed, that Korb and appellant took M.P. upstairs, that J.J. heard M.P. screaming and crying for about ten minutes, that Korb and appellant came downstairs and told J.J. to go outside and get M.P., that she asked them how M.P. had gotten outside from the second floor, but they didn't answer; that they told J.J. to say M.P. had fallen off the bed; that they then left for a friend's residence nearby; that J.J. got M.P., took her back upstairs, and cleaned the grass off her; and that M.P.'s brother, who had been upstairs, said something about the window and pointed at the window and at M.P.  Several people who had been at the friend's nearby residence were also interviewed; they said that appellant admitted killing M.P. that night.

            Appellant was charged with first-degree murder, second-degree murder, first-degree assault, and first-degree criminal sexual conduct.[1]  He denied each count.  The state moved to certify appellant as an adult.  A psychologist who was unfamiliar with the facts underlying the charges against appellant examined him and recommended that he be certified within extended juvenile jurisdiction (EJJ), which would give the department of corrections jurisdiction over him until he turns 21.  But, after reviewing the facts and conducting another brief interview of appellant, the psychologist altered his recommendation to favor certification as an adult, noting that

[s]ince [appellant]denies any culpability, rehabilitation in regard to the potential psychodynamic variables of violent behavior, other than the chemical dependency factors, would be problematical.

 

The district court followed the psychologist's recommendation and certified appellant as an adult.  He argues that this was an abuse of discretion.

D E C I S I O N

 

            A juvenile certification order will not be reversed unless the district court's findings are clearly erroneous so as to constitute an abuse of discretion.  St. Louis County v. S.D.S., 610 N.W.2d 644, 647 (Minn. App. 2000).  

A district court may certify a proceeding for action under the laws and procedures governing adults if the prosecuting authority demonstrates by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve the public safety.  Minn. Stat. § 260B.125, subd. 2 (6)(ii) (2002).  To determine whether the public safety would be served by adult certification, the district court must consider:

(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. § 260B.125, subd. 4 (2002).   Courts are to give greater weight to factors (1) and (3).  Id.  We will consider those factors first, in light of the holding that, for purposes of certification, a juvenile is presumed guilty of the alleged offense.  See In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995) (for purposes of certification, charges against juvenile presumed to be true), review denied  (Minn. 9 Feb. 1996), overruled on other grounds by In re Welfare of D.M.D., 607 N.W.2d 432 (Minn. 2000).

            Factor (1) is the seriousness of the alleged offense. The legislature has classified appellant's alleged offense as a "heinous crime" and prescribed a penalty of "life imprisonment without possibility of release." See Minn. Stat. § 609.106, subd. 2(1) (2002) (providing mandatory sentence for those convicted "under section 609.185, paragraph (a), clause (2)"); Minn. Stat. § 609.185 (a)(2) (2002) (causing death "while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence").  Particularly when the victim is an infant, murder coupled with sexual assault is more than a serious offense; it is a heinous crime.

 In assessing the seriousness of the offense, courts are to consider any aggravating factors and the impact on the victim.  Minn. Stat. § 260B.125, subd. 4(1).  The district court found three aggravating factors: the vulnerability of the 15-month-old victim, the presence of the victim's four-year-old brother, and the extreme cruelty with which the victim was treated.  These findings are supported by the psychologist's report.  After reviewing the documentary evidence in the case, he said he had the following concerns:

A.The report in the examination of physical evidence which notes "... [the examining physician] identified injuries [to M.P.] consistent with sexual assault" against an extremely vulnerable victim, an infant.

 

B.The possibility of a four year, five month old child being present when the crime occurred.

 

C.The infant being thrown out the window, whereby the victim was treated with profound cruelty.

 

At oral argument, appellant's attorney admitted that the alleged offense was serious, but stated that its seriousness was cancelled out by factor (3), prior record of delinquency, because appellant has no prior record of delinquency. We disagree, for both substantive and procedural reasons. Substantively, although appellant denied having any prior involvement with the juvenile criminal justice system when interviewed by the psychologist, his record shows tribal court sanctions for disorderly conduct and for juvenile intoxication when he was 11 and for truancy when he was 13 and a county juvenile court curfew violation when he was 13.  Moreover, he admitted to extensive underage use of both marijuana and alcohol. 

None of these rises to the level of delinquency, but collectively they weigh against the determination that the public safety would be served by retaining appellant in the juvenile justice system.  See In re Welfare of D.T.N., 508 N.W.2d 790, 793 (Minn. App. 1993) (affirming referral for adult prosecution when alleged offense was committed by 17-year-old whose record consisted only of nonadjudicated charges of tampering with a motor vehicle and theft), review denied (Minn. 14 Jan. 1994); In re Welfare of  J.A.R., 408 N.W.2d 692, 693 (Minn. App. 1987) (affirming referral for adult prosecution when alleged offense was committed by 14-year-old whose record consisted of adjudications of incorrigibility and lurking with intent to commit a crime), review denied (Minn. 26 Aug. 1987); In re Welfare of D.M., 373 N.W.2d 845, 847 (Minn. App. 1985) (affirming referral for adult prosecution when alleged offense was committed by 17-year-old whose record consisted of truancy).

 Procedurally, we disagree with appellant's view that, when the legislature directed courts to give greater weight to factors (1) and (3), it intended them to be summarily balanced and cancel each other out.  The net result of appellant's system would be that when those factors conflicted, neither would be given any weight; the matter would be determined on the basis of the remaining four factors.  In light of the not merely serious but heinous nature of appellant's alleged offense, we would not disregard factor (1) even if appellant had, in fact, no record of any misconduct.

            For factor (2), culpability, the district court found that appellant participated fully in the crime, based in part on "[t]he statements of many witnesses [that] confirm that [appellant] stated he killed the baby and that he threw the baby out the window."[2]  Evidence supports this finding.  One witness said that "[appellant] kept sayin' that he's the one that killed the baby.  And I think he said somethin' about throwin' her out the window or somethin'."  Appellant's sister, J.J., testified that appellant and Korb were both upstairs with M.P.   

            Appellant claims that the district court ignored possible mitigating factors, namely his intoxication and his low mental ability. But, while appellant may be able to assert intoxication as a defense at trial, he offers no support for the relevance of intoxication to certification proceedings.  The psychologist's assessment of appellant's mental ability was that he

is functioning in the mild to borderline range of intellectual functioning, which most likely is false/positive for sub average intellectual functioning due to his educational deprivation.  Item analysis of the Slosson Intelligence Test indicates that [appellant] lacks adequate basic educational information, which negatively skewed the result of this psychometric instrument.

 

Appellant's mental ability is not a mitigating factor.

For factor (4), programming history and ability to participate meaningfully in available programming, the district court found that appellant had failed to complete the only program he attempted, an anger management program ordered by the tribal court.  The psychologist testified that "[I]f he [had] completed that he might not have been in this predicament" and noted in his report that, "when [appellant] experiences a threat to his ego functioning, he tends to respond in a very violent and aggressive manner to preserve his psychological equilibrium."  Contrary to appellant's view, this factor does not weigh in favor of determining that the public safety would be served by retaining appellant in the juvenile system.

For factors (5) and 6, adequacy of the punishment or programming available in the juvenile justice system and the dispositional options available, the district court found that neither the punishment nor the programming nor the dispositional options available in the juvenile justice system would be adequate because appellant would necessarily be released when he turns 21.  Appellant lied about both his prior record and his substance abuse, which the district court found to demonstrate his lack of motivation to deal with his chemical dependency issues and his psychological issues.  This finding has support in the psychologist's statement that appellant's denial of culpability is problematic for his rehabilitation.

On direct examination, the psychologist testified:

Q.So basically everything [appellant's admission of responsibility, ability to sustain motivation during treatment, willingness to admit chemical dependency, academic progress and eventual employability, and strong family support]  would have to fall into place perfectly for [appellant] to be treated successfully [in the juvenile system]?

 

A.In essence, yes, ma'am.

 

Q.And if [it] doesn't fall into place perfectly and he's in the EJJ system, what happens when he hits 21?

 

A.Then the risk of recidivism increases.

 

Q.And there is a danger to public safety obviously?

 

A.Especially in light of his fairly young age being involved in chemical dependency.

 

            We conclude that the district court did not abuse its discretion in deciding that retaining appellant in the juvenile justice system would not serve the public safety and therefore certifying him as an adult.

            Affirmed.

[1] If convicted of first-degree murder, appellant will receive a mandatory life sentence without possibility of release.  See Minn. Stat. § 609.106, subd. 2(1) (2002) (prescribing life imprisonment without possibility of release for those convicted under Minn. Stat. § 609.185 (a)(2) (2002) (causing death of a human being while committing or attempting to commit criminal sexual conduct in first or second degree with force or violence)).

[2] The district court also stated that appellant denied any culpability for his actions.  Appellant does not dispute this, but claims the district court was wrong to rely on it.  However, the statement is irrelevant to the finding that appellant participated fully in the alleged offense.