In the Matter of the Welfare of: E. A. G., Child.

In the Matter of the Welfare of: E. A. G., Child. A05-2527, Court of Appeals Unpublished, January 30, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2527

 

In the Matter of the Welfare of:

E. A. G., Child.

 

Filed January 30, 2007

Affirmed Worke, Judge

 

Scott County District Court

File No. J05-02926

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant E. A. G.)

 

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

 

Patrick Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

            Considered and decided by Ross, Presiding Judge; Klaphake, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the adjudication of delinquency, appellant argues that (1) the evidence is insufficient to support the adjudication because the complainant's testimony was unreliable and, although appellant admitted that he accidentally touched L.K. while they were in the shower, the record contains no evidence of sexual or aggressive intent; (2) the disposition order is unlawful because the district court did not indicate what alternative dispositions it considered and why the disposition ordered was the least restrictive alternative; and (3) he was denied his right to effective assistance of counsel.  We affirm.

FACTS

            In late 2004, four-year-old L.K. reported to his father that appellant E.A.G., 12 years old, L.K.'s half-brother, put his finger in L.K.'s butt and touched his "pee-pee."  L.K. also told his father that appellant had been "humping" him from behind and "going nuts" on his butt.  When L.K's father asked L.K. what he meant, L.K. stated that appellant tried to put his "narley" in L.K's butt.  L.K's father understood that L.K. used the term "narley" to describe a penis.  L.K. told his father that the incident happened at his mother's home in the bedroom and/or shower and that he told appellant "no."  L.K's father testified that he called L.K's mother, who dismissed his concerns by accusing him of lying and saying that it "didn't happen."  L.K's father then reported the incident to the police.    

            L.K. was evaluated at the Midwest Children's Resource Center (MCRC) in December 2004.  The evaluation included an interview and a medical examination.  When the interview began, L.K. spontaneously told the nurse that his brother "put his finger in [L.K's] butt."  L.K. identified appellant and stated that the incident occurred at his mother's home in the shower.  L.K. then told the nurse that appellant put his "narley" in L.K.'s butt and that he had gone "nuts" and "humped" him in the butt.  L.K. described "humping" as "when you go nuts" and "totally nasty."  After questioning L.K. about his family and living situation, the nurse asked him to identify body parts on an anatomically correct drawing of a male child.  L.K. identified the penis as a "narley."  L.K. also identified other body parts and accurately described good and bad touches.  The nurse then sought more details from L.K. regarding what happened with appellant.  L.K. stated that appellant "is going nuts with me on my butt" and "going nuts with his narley."  L.K. explained that "going nuts" meant "humping," and then stated, "My brother's narley went through my butt on the bottom" while they were showering.  L.K. then demonstrated what happened with anatomically correct drawings of a male child and a male teenager.  When the nurse asked L.K. how it felt, L.K. stated that it "tickled" and denied feeling any pain. 

            A physical examination showed that L.K. was healthy with no visible injuries or signs of trauma.  L.K. showed the nurse on his body where appellant's penis "went through" his butt cheeks and touched him.  L.K. told the nurse that he told his mother that appellant "goes nuts at me at my butt" and that his mother said that she would ground appellant.  The nurse found there were no alternative explanations for the conduct L.K. described and that he had never identified anyone other than appellant as the individual who touched him.  The nurse also stated that L.K. did not appear to be confused about what he described and that his statements corroborated his disclosure.

            In February 2005, a juvenile-delinquency petition was filed charging appellant with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2004); and second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a) (2004).  After a court trial, the district court concluded that the state failed to prove beyond a reasonable doubt that the allegations constituted first-degree criminal sexual conduct, but that it did prove beyond a reasonable doubt that the allegations constituted second-degree criminal sexual conduct.  The district court ordered appellant to undergo a psychosexual evaluation. 

            The district court found that the first psychosexual-evaluation report focused on the issue of culpability rather than appellant's amenability to treatment and treatment needs.  Because the doctor opined that appellant was not a sex offender and that it was highly unlikely that he committed the offense, the district court found that the report did not comport with the requirements of Minn. Stat. § 609.3452 (2004), which mandates an independent professional assessment of the offender's need for sex-offender treatment.  The court then ordered that a second evaluation be completed by a court-appointed evaluator.  The second report recommended that appellant attend outpatient sex-offender treatment designed for juveniles.  The evaluator opined that appellant "is at moderate risk to re-offend because of psychological needs and forces that he does not understand and may not be aware of."  Following a dispositional hearing, the district court adjudicated appellant delinquent, placed him on indefinite probation, and ordered him to complete sex-offender treatment and recommended aftercare.  This appeal follows.

D E C I S I O N

Sufficiency of Evidence

 

            Appellant argues that the evidence is insufficient to support the delinquency adjudication because the complainant's testimony was unreliable, and, although appellant admitted that he accidentally touched L.K. while they were in the shower, the record contains no evidence of sexual or aggressive intent.  On appeal from a determination that the elements of a delinquency petition have been proven beyond a reasonable doubt, this court "is limited to ascertaining whether, given the facts and legitimate inferences, a factfinder could reasonably make that determination."  In re Welfare of S.M.J., 556 N.W.2d 4, 6 (Minn. App. 1996).  "We are required to view the record in the light most favorable to the determination and assume that the factfinder believed the testimony supporting the determination and disbelieved any contrary evidence."  Id.  This court shows great deference to a fact-finder's determination of witness credibility.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).  "The resolution of conflicting testimony is the exclusive function of the [fact-finder] because it has the opportunity to observe the demeanor of witnesses and weigh their credibility."  State v. Lloyd, 345 N.W.2d 240, 245 (Minn. 1984).     

            Appellant argues that the state failed to show that appellant intentionally touched L.K.'s intimate parts with sexual or aggressive intent; rather, the evidence shows that the incident in the shower was accidental or, at most, horseplay with no intent.  Minn. Stat. § 609.343, subd. 1(a) (2004), states that a person is guilty of criminal sexual conduct in the second degree if that person "engages in sexual contact with another person [and] . . . the complainant is under 13 years of age and the actor is more than 36 months older than the complainant."  For the purposes of Minn. Stat. § 609.343, subd. 1(a), sexual contact "includes any of the following acts committed without the complainant's consent, except in those cases where consent is not a defense, and committed with sexual or aggressive intent: (i) the intentional touching by the actor of the complainant's intimate parts."  Minn. Stat. § 609.341, subd. 11(a) (2004).  The district court concluded that the elements of second-degree criminal sexual conduct had been proved beyond a reasonable doubt. 

            The evidence was sufficient to support appellant's delinquency adjudication.  The district court found that L.K. described conduct that he experienced and that the conduct was of an intentional and sexual nature.  L.K.'s testimony was consistent with the out-of-court statements he made to his father and the nurse at MCRC.  L.K. gave a detailed account of the event: while appellant and L.K. were in the shower together, appellant had been "humping" L.K. from behind and "going nuts" on his butt; that appellant tried to put his "narley" (penis) in L.K.'s butt; and that he told appellant "no."  This account was corroborated by the testimony of L.K.'s half-sister, who testified that she overheard L.K. saying "No, no, don't do that," with a raised voice while appellant and L.K. were in the shower together on one occasion.  She also testified that she later heard L.K. tell their mother that appellant touched him on his butt and "weenie" and that their mother grounded appellant. 

            The district court also made several crucial credibility determinations.  "The credibility of witnesses and the weight to be given their testimony are determinations to be made by the factfinder."  Dickerson, 481 N.W.2d at 843.  The district court found L.K.'s father's testimony to be detailed, reasonable, and credible.  It can also be inferred that the district court, which found L.K. competent to testify, found his testimony to be credible.  The district court found that L.K.'s testimony and out-of-court statements were "striking in their detail," and consistent and corroborated by substantial evidence.  On the other hand, the district court found the testimony of L.K.'s mother and her boyfriend to be significantly inconsistent with the other evidence in the case and less than credible.  L.K.'s mother and her boyfriend testified that they believed that L.K.'s father had prompted L.K. to make the allegations in order to obtain full custody of L.K.  However, the custody dispute over L.K. had already been resolved.  Further, there was no evidence that L.K.'s father prompted him to make the allegations for any reason. 

            Finally, while the district court found that the sexuality assessment, completed shortly after the allegations were reported, focused on the issue of culpability rather than on appellant's amenability to treatment and treatment needs, appellant argues that assessment states that he has "minimal to adequate understanding of sexuality education topics," and that the Multiphasic Sex Inventory showed him to have "a very limited fund of knowledge regarding sexual matters" and a "very limited level of sexual drive and interest."  However, the report also states that appellant scored significant points in five of the 12 risk factors scale for adolescent sex offenders.  The report states that

[t]ypically an adolescent needs to have a score of 7 categories or more out of the 12 to be considered a moderate to high risk for acting-out sexually.  However, even though [appellant] denies any inappropriate behavior, his score of 5 risk factors places him in at least a moderate risk category for possibly sexually acting-out.

 

The report also stated that given L.K.'s allegations and appellant's risk category, "further exploration and evaluation [was] warranted."  Appellant also notes that another expert determined that appellant took a polygraph exam which showed him to be truthful when he denied having sexual contact with L.K.  Because the assessment did not comport with the requirements of Minn. Stat. § 609.3452 (2004), the district court ruled the assessment was not admissible at trial. 

            The district court concluded that the elements of second-degree criminal sexual conduct had been proven beyond a reasonable doubt and made detailed findings regarding the evidence to support each element.  When viewed in the light most favorable to the verdict, the evidence was sufficient to support appellant's delinquency adjudication.

Sufficiency of Dispositional Order

            Appellant argues that the district court's disposition order fails to comport with the statutes and rules because it does not state what alternative dispositions were considered and/or why the disposition imposed was the least-restrictive alternative.  "The [district] court has broad discretion in choosing the appropriate juvenile delinquency disposition.  This court will affirm the disposition as long as it is not arbitrary."  In re Welfare of J.A.J., 545 N.W.2d 412, 414 (Minn. App. 1996) (citation omitted).  "Absent a clear abuse of discretion, a [district] court's disposition will not be disturbed."  Id.  A delinquency disposition must be "necessary to the rehabilitation of the child[.]"  Minn. Stat. § 260B.198, subd. 1 (2006).  Further, a disposition order must state why the child's best interests are served by the disposition, alternative dispositions that were considered, and why such alternatives were not appropriate.  Id., subd. 1(m); Minn. R. Juv. Delinq. P. 15.05, subd. 2(A). 

            The district court found that appellant is in need of sex-offender treatment and that such treatment requires time and supervision that would not be available under a six-month stay of adjudication.  Further, the district court found that the disposition "is the least restrictive action that is consistent with [appellant's circumstances] and that is in [appellant's] best interests."  The alternative disposition considered by the district court was a stay of adjudication, and the order states that a stay of adjudication was not appropriate because appellant required treatment that would not be available under a six-month stay of adjudication.  The district court's dispositional order meets statutory and rule requirements by stating the alternative disposition that was considered, why appellant's best interests were being met, and that it was the least-restrictive disposition considering appellant's circumstances.  Because the disposition meets the statutory and rule requirements and is not arbitrary, the district court's disposition order was not an abuse of discretion. 

Ineffective Assistance of Counsel

            Finally, appellant argues that he was denied effective assistance of counsel.  Specifically, appellant argues that his trial counsel (1)failed to request a competency hearing to determine if appellant was competent to assist in his defense and stand trial, (2) failed to challenge L.K.'s competency, and (3) waived any right to challenge the admissibility of appellant's interrogation, conducted without counsel or parent present and with no Miranda warning given. 

            Appellant argues that he is entitled to a new proceeding below because he was denied effective assistance of counsel.  This court denied both of appellant's motions to remand this issue on the ground that postconviction proceedings are not available to juveniles because juveniles are not convicted of a crime.  See Minn. Stat. § 260B.255, subd. 1 (2006) (providing that a violation of law committed by a child "is not a crime" except in cases of adult certification, EJJ, and major traffic offenses).  Minn. R. Civ. App. P. 140.01 precludes this court from rehearing matters previously decided in this court.   Further, while Minn. R. Juv. Delinq. P. 16.01 sets forth a variety of post-trial motions available to juveniles, appellant did not file any post-trial motions.  Instead, he now requests that this court find the record sufficient to establish his ineffective-assistance claim without additional facts in the interests of justice.  In adult proceedings, a reviewing court may consider an ineffective assistance of counsel claim on direct appeal when the existing record is sufficient to allow proper review without additional fact finding.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  The record in this case is sufficient to allow proper review of appellant's claim.

            In order to show ineffective assistance of counsel, a defendant must affirmatively show that his counsel's representation "fell below an objective standard of reasonableness" and that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  We consider an attorney's actions to be "within the objective standard of reasonableness when [the attorney] provides [the] client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances."  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). There is a strong presumption that a counsel's performance was reasonable.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

            First, appellant argues that his trial counsel failed to request a competency hearing to determine if appellant was competent to assist in his defense and stand trial.  Appellant contends that based on his age alone, a hearing under Minn. R. Juv. Delinq. P. 20.01 should have been held.  Rule 20.01, subd. 3, provides that a motion to determine the competency of a child shall be brought "if there is reason to doubt the competency of the child during the pending proceedings."  Rule 20.01, subd. 1, further states that:

A child is incompetent and shall not be permitted to enter a plea, be tried, or receive a disposition for any offense when the child lacks sufficient ability to:

 

(A) consult with a reasonable degree of rational understanding with the child's counsel; or

 

(B) understand the proceedings or participate in the defense due to mental illness or mental deficiency. 

 

Neither the prosecutor nor appellant's trial counsel raised a question as to appellant's competency.  Appellant also fails to state why he believed his competency was in doubt.  There is nothing in the record indicating that appellant was not competent to assist in his defense or to stand trial.  The record reflects that appellant was able to consult with his trial counsel with a reasonable degree of rational understanding, and that he understood the proceedings and participated in his defense. 

            Appellant also argues that his trial counsel failed to challenge the competency of L.K. to testify.  Appellant cites an Internet article to support his argument that any child under the age of ten would not have the mental or moral capacity to appreciate the duty to tell the truth.  But Minn. Stat. § 595.02, subd. 1(m) (2006), presumes that "[a] child under ten years of age is a competent witness unless the court finds that the child lacks the capacity to remember or to relate truthfully facts respecting which the child is examined."  The statute provides that the court shall examine the child.  Appellant contends that if L.K.'s competency had been challenged, the outcome may have been different.  But based on a request by appellant, the district court questioned L.K. to establish his competency.  Based on that examination, the district court determined that L.K. had the capacity to tell the truth and the ability to recall the facts.  While appellant argues that the outcome may have been different had L.K.'s competency been challenged, he fails to demonstrate why the result would have been different.  This is especially true because significant evidence corroborated L.K.'s claim. 

            Finally, appellant argues that his trial counsel erred in waiving any right to challenge the admissibility of appellant's interrogation, conducted without counsel or a parent present and with no Miranda warning given.  In Miranda v. Arizona, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).  "Juveniles as well as adults are entitled to be apprised of their constitutional rights according to the dictates of Miranda." State v. Loyd, 297 Minn. 442, 445, 212 N.W.2d 671, 674 (1973).  "[T]he determination of whether a juvenile would reasonably believe he or she was in custody must be made from the perspective of the juvenile.  See In re Welfare of D.S.M., 710 N.W.2d 795, 798 (Minn. App. 2006). 

            Following a request by the investigating officer, appellant went to the police department voluntarily; he was not in custody at the time of the interview.  Appellant was accompanied by his mother, his mother's boyfriend, and his mother's divorce attorney.  The officer, a social worker, and the divorce attorney were present in the room during appellant's interview.  The officer informed appellant that no one was forcing him to speak to her and if there were any questions he did not want to answer, he did not have to.  Appellant was not in custody and an attorney was present at the time of the interview; therefore, there was no Miranda violation.  Appellant has also failed to show how the outcome would have been different if his trial counsel had challenged the statements and they had been suppressed.  Appellant's adjudication was supported by significant other evidence presented at trial.  Because appellant has failed to show that his trial counsel's representation fell below an objective standard of reasonableness and that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different, appellant's ineffective-assistance-of-counsel claim fails.

            Affirmed.