In the Matter of the Welfare of  T.C.T.

This opinion will be unpublished and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

A04-542

 

 

In the Matter of the Welfare of  T.C.T.

 

 

Filed December 21, 2004

Affirmed Willis, Judge

 

Scott County District Court

File No. 2003-22951

 

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant T.C.T.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Patrick Ciliberto, Scott County Attorney, Ruby Q. Dasgupta, Assistant County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN  55379 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant T.C.T. challenges the district court's order designating the proceedings against him as an extended juvenile jurisdiction (EJJ) prosecution.  Because the district court's designation was not clearly erroneous, we affirm.

FACTS

On November 19, 2003, the school-resource officer at Prior Lake Senior High School received a report that appellant T.C.T., then a 17-year-old student, had threatened a classmate by telling her that he was going to shoot her in the head.  The victim was visibly upset and told the officer that she was very frightened because she believed that T.C.T. would follow through with his threat.  She said that she had heard about threats that T.C.T. had made to other students, and she also had heard that he owned a gun.  She told the officer that she did not want to return to school as long as T.C.T. remained.  T.C.T. was charged with one count of terroristic threats; he denies the allegation. 

            T.C.T. has a juvenile-delinquency record dating back to July 2002, including a fifth-degree assault charge, for which he received a stay of adjudication; a charge of underage consumption of liquor and a charge of careless driving, for which he also received stays of adjudication; and an adjudication for criminal sexual conduct in the third degree, which was amended from criminal sexual conduct in the second degree.[1] 

            At the time of the certification study, T.C.T. was receiving chemical-dependency treatment at the Anthony Lewis Center, where he completed primary treatment on January 16, 2004.  T.C.T. demonstrated improvement in a number of areas, but his counselor expressed concern because T.C.T. completed most of his work during the four days before the end of the program and because of his immature attitude. 

            At the time of the certification study, T.C.T. was also participating in sex-offender treatment from Lutheran Social Services (LSS).  His progress was slow, but it improved markedly from the time he committed to staying sober.  LSS noted that if T.C.T. takes full responsibility for his inappropriate sexual behaviors, he should be able to make good and steady progress toward his remaining treatment goals.  LSS also noted that continued monitoring of T.C.T.'s drug use and his continued involvement in pro-social activities remain critical. 

            The certification study noted that there are a number of programming options available to T.C.T. through the juvenile-justice system, including interventions focusing on cognitive restructuring, victim-empathy development, and anger management. 

The district court found that (1) the terroristic threat was a serious offense; (2) that T.C.T.'s prior delinquency record included several crimes against persons; (3) that his progress in programming had been slow; (4) that the adequacy of punishment or programming available in the juvenile system would be minimal because T.C.T. would be 19 years old in less than one year; and (5) that juvenile programs existed that would benefit T.C.T. if he would take advantage of them.  Considering these factors, the district court found that an EJJ designation would serve public safety by allowing T.C.T. time to complete needed programming.  This appeal follows.

D E C I S I O N

            T.C.T. argues that the district court erred by designating him for EJJ prosecution.  First, he urges this court to vacate the EJJ designation because there was no showing that retaining the case in the juvenile court would not benefit public safety.  Second, he argues that the district court erred by concluding that clear and convincing evidence demonstrated that an EJJ designation would serve public safety.  This court reviews a district court's designation of a proceeding as an EJJ prosecution under a clearly erroneous standard.  In re Welfare of B.N.S., 647 N.W.2d 40, 42 (Minn. App. 2002).

            In an EJJ prosecution, if the juvenile is found guilty of or pleads guilty to the offense, he is given both an adult criminal sentence and a juvenile disposition.  In re Welfare of D.M.D., 607 N.W.2d 432, 434 (Minn. 2000).  "The adult sentence is stayed on the condition that the juvenile does not violate the terms of the disposition or commit a new offense."  Id.  EJJ extends the juvenile court's jurisdiction until the person reaches age 21.  Id. 

"A proceeding involving a child alleged to have committed a felony offense is an [EJJ] prosecution if . . . the child was 14 to 17 years old at the time of the alleged offense, a certification hearing was held, and the court designated the proceeding an [EJJ] prosecution."  Minn. Stat. § 260B.130, subd. 1(1) (2002); accord Minn. R. Juv. Delinq. P. 19.06, subd. 2 (2003).  For a district court to designate a juvenile's case as an EJJ prosecution, there must be clear and convincing evidence that such a designation serves public safety.  Minn. Stat. § 260B.130, subd. 2 (2002); Minn. R. Juv. Delinq. P. 18.06, subd. 5 (B) (2003). 

A district court must consider the six factors provided in the certification statute when determining whether public safety would be served by an EJJ prosecution.  Minn. Stat. § 260B.130, subd. 2; Minn. R. Juv. Delinq. P. 19.05 (2003).  These factors are:

(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.

 

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. § 260B.125, subd. 4 (2002); accord Minn. R. Juv. Delinq. P. 19.05. 

Although the district court analyzed the six factors to weigh whether adult certification or an EJJ designation was appropriate, T.C.T. argues that the district court erred by failing to weigh the six factors again to determine whether retaining the case only in the juvenile court would serve public safety.  He bases his argument on the certification statute, which provides that the prosecuting authority has the burden of proof "that retaining the proceeding in the juvenile court does not serve public safety."  Minn. Stat. § 260B.125, subd. 2(6)(ii).  But this burden of proof clearly applies only to certification decisions.  The EJJ statute requires that the prosecutor prove by clear and convincing evidence that EJJ prosecution serves public safety.  Minn. Stat. § 260B.130, subd. 2. 

T.C.T. also relies on B.N.S., 647 N.W.2d 40, and In re Welfare of S.J.G., 547 N.W.2d 456 (Minn. App. 1996), to support his argument that in an EJJ prosecution the state has to prove that retaining the case in juvenile court does not serve public safety.  But B.N.S. reversed an EJJ designation because the district court did not address whether there was clear and convincing evidence that an EJJ designation served public safety and because the record failed to support such a conclusion.  647 N.W.2d at 44. 

S.J.G. also does not support T.C.T.'s argument.  T.C.T. implies that the certification order in S.J.G. was affirmed only because the record contained findings separately considering whether an EJJ designation or certification as an adult was appropriate.  But that case found that certification was proper even though the expert did not address an EJJ designation as an alternative in the reference study.  The expert in that case considered the six statutory factors in evaluating certification and then separately testified that EJJ designation was not appropriate.  547 N.W.2d at 459. 

Here, the district court recognized that T.C.T.'s case was a matter of non-presumptive certification, and it examined the six statutory factors to determine T.C.T.'s risk to public safety.  The court found that certifying the proceeding to adult court would not serve public safety but that neither would retaining the proceeding solely in juvenile court.  The court concluded that "based upon clear and convincing evidence that public safety will be served," an EJJ designation was appropriate.  The court did not need to analyze the six factors again to consider whether retaining jurisdiction only in juvenile court would serve public safety.  By weighing whether designation as an EJJ prosecution would serve public safety, the court used the correct standard.

This court must next determine whether the district court erred by concluding that the prosecution proved by clear and convincing evidence that public safety would be served by designating T.C.T.'s case for EJJ prosecution.  As noted above, a district court must weigh the six factors in Minn. Stat. § 260B.125, subd. 4, to determine whether EJJ serves public safety.  Minn. Stat. § 260B.130, subd. 2; B.N.S., 647 N.W.2d at 42-43.  "These factors . . . are intended to assess whether a juvenile presents a risk to public safety and thus aim to predict whether a juvenile is likely to offend in the future."  In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000).  A risk to public safety exists when the juvenile's behaviors are likely to continue.  Id.

T.C.T. argues that he does not pose a risk to public safety.  He asserts that the psychologist who prepared the psychological report for the certification study found that T.C.T. was unlikely to have acted on the threat that he made to his classmate.  T.C.T. also asserts that the certification study found that he was unlikely to reoffend and did not find him dangerous.  He argues that an EJJ designation based only on his age would violate the purpose of the EJJ statute. 

Although the psychologist's report found that T.C.T. probably would not have acted on the threats he made, the psychologist noted that "it appears that [T.C.T.] possesses a great deal of anger toward and very little respect for females."  The psychologist also noted that T.C.T.'s "risk of serious physical violence to others in the community is low given his prior history.  However, it must be remembered that he also has a history of carrying dangerous weapons . . . on his person and it is impossible to predict if such a weapon would or would not be used during an altercation." 

The certification study also expressed "significant concern" for the "pattern of offenses committed by [T.C.T.] which involve the degradation of women."  The certification study noted a "significant pattern of inappropriate or abusive behavior towards women."  The state argues that a pattern of behavior suggests a risk of continuing behavior.  We agree.

The district court analyzed the six statutory public-safety factors and found that an EJJ designation would serve public safety because of concerns with the adequacy of programming available to T.C.T. and the time needed to adequately put this programming into place.  These six factors are:

1.         Seriousness of Offense

The seriousness of the offense is given particular weight.  Minn. R. Juv. Delinq. P. 19.05.  Here, T.C.T. threatened to shoot a classmate in the head.  The district court found that this was a serious offense.  The court considered the impact on the victim, who was very frightened because she believed that T.C.T. would follow through with his threat.  The district court found that T.C.T.'s "easy access to a weapon poses concerns as to what further provocation might result in" and that his behavior "posed a threat to the community." 

T.C.T. argues that because the district court did not order certification as an adult, this court should conclude that the seriousness of T.C.T.'s offense is insufficient to support an EJJ designation.  But a terroristic threat is a crime of violence under Minn. Stat. § 624.712, subd. 5 (2002), and carries a potential sentence of up to five years' imprisonment or a fine of up to $10,000.  The  rules provide for EJJ prosecution when "the court finds, after a contested certification hearing, that the prosecutor has not demonstrated by clear and convincing evidence that retaining the proceeding in juvenile court does not serve public safety pursuant to Rule 18.06, subdivision 3, and the court determines that extended jurisdiction juvenile prosecution is appropriate."  Minn. R. Juv. Delinq. P. 19.06, subd. 2(A)(1).  The record supports the district court's determination that the crime was serious and that T.C.T.'s conduct threatened public safety.

2.         Culpability

The district court found that T.C.T.'s culpability in committing the offense was unclear because T.C.T. denied making terroristic threats and minimized the severity of the incident.  The agent preparing the certification study did not have authorization from T.C.T.'s attorney to interview T.C.T. regarding the offense because T.C.T. denied the allegation.  Therefore, the agent could not assess T.C.T.'s culpability.  Because T.C.T. refused to acknowledge his behavior, the psychologist also could not comment on culpability.  The district court did not address whether T.C.T.'s culpability or failure to acknowledge the incident poses a threat to public safety.

3.         Prior Delinquency Record

The juvenile's prior delinquency record is also given particular weight.  Minn. R. Juv. Delinq. P. 19.05.  Here, the district court noted that T.C.T. has a delinquency record dating back to 2002, which includes several crimes against persons.  These crimes include criminal sexual conduct in the third degree, fifth-degree assault, underage drinking, and careless driving.  But the district court did not specifically address whether T.C.T.'s prior offenses indicate that he is likely to reoffend in the future or make him a threat to public safety.

4.         Programming History

The district court expressed concern that T.C.T.'s response to programming had been slow and also noted that T.C.T. "needs more supervision and more structure in his life to successfully complete programming."  T.C.T. argues that this factor "evaluates only programming failures."  See H.S.H., 609 N.W.2d at 262.  But the court in H.S.H. noted that although the juvenile in that case had an extensive history of noncompliance and failures in numerous juvenile-treatment programs, she was doing exceptionally well since she was last released, and "this factor fails to support the conclusion that appellant is a present or future threat to public safety."  Id. at 263.

            Here, the psychologist's report and the certification study both indicated that while T.C.T. is making progress, it has been slow.  The psychologist's report questioned whether his participation has been meaningful.  The district court expressed concern about T.C.T.'s ability to complete the necessary programming by the time he reaches 19 years of age.  The district court concluded that providing more time for T.C.T. to complete programming would serve public safety. 

            5.         Adequacy of Punishment or Programming Available in Juvenile-Justice System

 

The district court found that because T.C.T.'s progress in programming has been slow and because he would have less than one year in the juvenile-justice system in the absence of an EJJ designation, "the adequacy of punishment or programming available in the juvenile system is minimal."  The Minnesota Supreme Court has upheld a district court's determination that an EJJ designation was necessary to allow for sufficient time to treat a juvenile.  D.M.D., 607 N.W.2d at 438. 

T.C.T. argues that a finding concerning the time needed for programming does not prove by clear and convincing evidence that public safety requires an EJJ designation and implies that this is the only factor weighing in favor of such a designation.  But that is not the case.  As noted above, the district court found T.C.T.'s offense to be serious, his prior history included crimes against persons, and he had made slow progress in treatment.  The limited amount of time that T.C.T. would remain in the juvenile-justice system without an EJJ designation is simply an additional factor indicating that EJJ prosecution would serve public safety. 

6.         Dispositional Options

The district court concluded that T.C.T. could benefit from a variety of available residential treatments and programming if he took advantage of these options.  These programming options could help T.C.T. resolve his issues with chemical dependency and anger management, issues at the heart of his mental-health and delinquency problems.  The options available to T.C.T. through EJJ would therefore serve the public safety.

            We conclude that the district court did not clearly err when it decided that the prosecution proved by clear and convincing evidence that an EJJ designation would serve public safety.

Affirmed.

[1] The criminal-sexual-conduct charge stemmed from allegations that T.C.T. had sexual intercourse with a highly intoxicated, 14-year-old female with whom he had a relationship.  He admitted to this behavior.