In the Matter of the Welfare of: B.B.H., Child.

In the Matter of the Welfare of: B.B.H., Child. A05-2535, Court of Appeals Unpublished, January 2, 2007.

This opinion will be unpublished and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

A05-2535

 

In the Matter of the Welfare of:

B.B.H., Child

 

Filed January 2, 2007

Affirmed in part, reversed in part, and remanded

Ross, Judge

 

Cottonwood County District Court

File No. JV-05-85

 

 

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

 

L. Douglas Storey, Cottonwood County Attorney, Nicholas A. Anderson, Assistant County Attorney, 1044 Third Avenue, Windom, MN 56101 (for respondent)

 

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

 

Considered and decided by Klaphake, Presiding Judge; Ross, Judge; and Harten, Judge.*

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

This case arises out of the alleged sexual contact by 16-year-old B.B.H. with a younger boy.  On appeal from a delinquency adjudication on two counts of first-degree criminal sexual conduct, B.B.H. argues that: (1) the evidence that sexual contact occurred is insufficient to support the adjudication; (2) the district court erred by ordering disposition without making required findings regarding B.B.H.'s best interests; and (3) the statute requiring B.B.H. to register as a sex offender violates due process because juveniles are not afforded a jury trial in delinquency proceedings.  Because we find sufficient supporting evidence in the record, we affirm the adjudications.  Because the district court failed to issue the statutorily required written findings to support the delinquency disposition, we reverse and remand for additional written findings in accordance with Minnesota Statutes section 260B.198, subdivision 1(m).  We restate the repeated holding that the predatory-offender registration statute does not violate due process by failing to afford juveniles a jury trial.

FACTS

Cottonwood County filed a delinquency petition against 16-year-old B.B.H., alleging that in December 2004 and January 2005 he committed first-degree criminal sexual conduct by performing oral sex on 12-year-old J.P. while both resided at a foster home.  J.P. told a social worker that B.B.H. first performed oral sex on him on a basement couch after his two younger brothers went to bed.  He claimed that the sex act followed their discussions of their past sexual behavior, including J.P.'s sexual abuse of his female cousin and younger brother.  J.P. reported that he pulled his own pajamas down to his knees and B.B.H. then performed oral sex for about 10 minutes.  J.P. asserted that the January 2005 incident occurred in the same basement.  Again after J.P.'s brothers went to bed, B.B.H. and J.P. were allegedly watching a movie when B.B.H. asked J.P. if B.B.H. could perform oral sex on him.  J.P. first said "no," but acquiesced when B.B.H. persisted.  J.P. reported that the sexual encounter lasted 10 to 15 minutes.

A few days later, J.P. was placed in residential care for treatment and evaluation for the sexual offenses he had committed.  J.P. then sent B.B.H. a letter asking him not to tell anyone about their "secret."  During the adjudication hearing, J.P. admitted that the "secret" referred to his sexual behaviors with others and was not about the alleged sex acts with B.B.H.  A social worker asked B.B.H. about the letter in February 2005.  B.B.H. told her it was from a 12-year-old boy.  B.B.H. said the boy was just a friend, but he disagreed with the social worker that an age difference of four years was inappropriate for a sexual relationship as long as both members are younger than 18.

B.B.H. testified at the delinquency trial and denied the allegations of sexual conduct with or sexual propositions to J.P.  He admitted that he was in the basement with J.P. but insisted that nothing inappropriate happened.  He claimed that J.P. had a reputation for lying and would exhibit jealous anger at B.B.H. if B.B.H. spent time with J.P.'s brothers or believed that B.B.H. was ignoring him.  B.B.H. also testified that J.P. bragged about his own sexual offenses.

The district court found B.B.H. had committed both acts of first-degree criminal sexual conduct.  Although the court found several contradictions in J.P.'s testimony regarding the presence of his brothers and the dates of the incidents, it found J.P.'s testimony credible.  The court found that state records corroborated the allegations because they showed that B.B.H. and J.P. were at the same foster home in December 2004 and January 2005, and it concluded that the elements of the offense had been proven beyond a reasonable doubt.

The department of corrections filed a predisposition report urging that B.B.H. represented a community safety risk and was in need of residential care because of his history of mental health problems, aggressive behavior, and sexual misconduct.  The report recommended a delinquency adjudication, supervised probation for an indeterminate period, a 30-day inpatient sex-offender evaluation, 40 hours of community service, registration as a predatory offender, and a prohibition from any unsupervised contact with any child two and one-half years younger than B.B.H.  The court adopted all the recommendations of the predisposition report.  It adjudicated B.B.H. delinquent in a November 2005 order that did not address any alternative dispositions or issues of public safety and that included a conclusory finding that the indeterminate probation was in B.B.H.'s best interests.

B.B.H. moved the district court to modify the disposition, arguing that the court did not make statutorily required written findings regarding the best interests of the child and the alternative dispositions considered.  The district court denied the motion, but it acknowledged that its disposition order "did not make a litany of findings regarding why the disposition was the least restrictive alternative."  After acknowledging the shortcomings of its disposition order, the district court found that because the sex-offender evaluation recommended inpatient treatment, it was the least restrictive alternative.  The court also concluded that, given the seriousness of the offense, a stay of adjudication would not have been granted even if requested.  This appeal follows.

D E C I S I O N

I

B.B.H. argues that the evidence the state presented was insufficient to prove that he committed first-degree criminal sexual conduct.  He focuses on inconsistencies in J.P.'s testimony and the lack of corroborating evidence.  We are not persuaded.

Our review of an insufficient-evidence claim is limited to a thorough analysis of the record to determine "whether the facts in the record and the legitimate inferences drawn from them would permit the [fact-finder] to reasonably conclude that the defendant was guilty beyond a reasonable doubt."  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (quotation omitted).  We recognize that witness testimony supporting a guilty verdict may contain inconsistencies and discrepancies, but we rely on the fact-finder to carefully evaluate and weigh the evidence.  We therefore "cannot retry the facts, but must take the view of the evidence most favorable to the state."  State v. Merrill,274 N.W.2d 99, 111 (Minn. 1978).  We also must assume that the fact-finder believed the state's witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will therefore uphold the verdict if the fact-finder, giving due regard to the presumption of innocence and the state's burden of proof beyond a reasonable doubt, could have reasonably found the accused guilty of the offense charged.  State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).  This standard of review is the same for bench trials and jury trials.  Davis, 595 N.W.2d at 525.  On this standard, we find that the evidence is sufficient to establish that B.B.H. committed first-degree criminal sexual conduct.

A defendant is guilty of first-degree criminal sexual conduct if he engages in sexual penetration with a child younger than 13 years of age and the defendant is more than 36 months older than the child.  Minn. Stat. § 609.342, subd. 1(a) (2004).  Consent to the act by the complainant is not a defense.  Id. Sexual penetration includes oral sex.  Id. § 609.341, subd. 12(1) (2004).

B.B.H. asserts that there was no physical evidence of J.P.'s sexual abuse and that J.P. did not timely report the crime.  B.B.H. concedes that in a first-degree criminal sexual conduct prosecution, the testimony of a victim need not be corroborated, but he contends the weak evidence of guilt here requires independent corroboration.  See Minn. Stat. § 609.347, subd. 1 (2004) (stating that victim's testimony in criminal sexual conduct prosecution need not be corroborated).  We disagree.  J.P.'s detailed and materially consistent testimony is sufficient to support the guilty determination; corroboration is not required.  See State v. Myers, 359 N.W.2d 604, 608 (Minn. 1984) (finding that corroborating testimony was not required when child described defendant's acts consistently and in detail).  J.P. testified that B.B.H. performed oral sex on him at a foster home in Cottonwood County on two occasions when J.P. was 12 years old and B.B.H. was 16more than 36 months his senior.  J.P. gave approximate dates and pinpointed the circumstances and geographic location of the abuse.  State records corroborate B.B.H.'s presence in the same foster home with J.P. at the reported period of the abuse.  J.P.'s testimony, if credited by the fact-finder, was sufficient to meet the elements of first-degree criminal sexual conduct.

B.B.H. sharply focuses on J.P.'s prior inconsistent statements, his somewhat contradictory testimony, and J.P.'s admission to a prior fabrication of a physical assault by his adoptive father.  It is well-settled that assessing the credibility of witnesses and weighing their testimony are within the exclusive province of the fact-finder.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  And inconsistencies and conflicts do not require reversal; they are merely factors to consider when making credibility determinations, which is the role of the fact-finder.  State v. Johnson, 679 N.W.2d 378, 387 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004).  Without reweighing the district court's credibility assessment, we note that the inconsistencies in J.P.'s testimony concerned subjects other than the sexual abuse itself, such as the specific dates of the acts and the presence of others in the basement.  Even when a victim's account of sexual abuse changes over time, credibility is still for the fact-finder to resolve.  See State v. Erickson, 454 N.W.2d 624, 629 (Minn. App. 1990) (noting that jury was entitled to believe testimony of sexual-abuse victim whose story had changed several times), review denied (Minn. May 23, 1990).  We do not suggest that every reasonable fact-finder necessarily would have believed J.P.'s testimony.  But viewing the record in favor of the decision and deferring to the district court's credibility determination, we conclude that there was sufficient evidence as a matter of law to find beyond a reasonable doubt that B.B.H. committed first-degree criminal sexual conduct.

II

B.B.H. next argues that the district court committed reversible error by neglecting to make statutorily required findings to support its disposition order.  Following a delinquency adjudication, a district court must make specific and sufficient written findings of fact to support the disposition ordered, setting forth "(1) why the best interests of the child are served by the disposition ordered; and (2) what alternative dispositions were considered by the court and why such dispositions were not appropriate in the instant case."  Minn. Stat. § 260B.198, subd. 1(m) (2004).  "The findings are necessary to facilitate meaningful appellate review, to show that the district court considered all of the relevant factors, and to enable the parties to understand the decision."  In re Welfare of R.V., 702 N.W.2d 294, 304 (Minn. App. 2005).  The failure to make the required findings constitutes reversible error, and this court may remand to the district court for the limited purpose of developing findings that satisfy the statutory requirements.  In re Welfare of N.T.K., 619 N.W.2d 209, 211-12 (Minn. App. 2000).

B.B.H. argues that the district court failed to make findings explaining why the court's disposition is in B.B.H.'s best interests and serves public safety, which alternative dispositions were considered, and why those alternatives were rejected.  The state acknowledges the deficiencies in the district court's order, but argues that the court's amended disposition order in April 2006 complied with the statutory requirements.  We find that the April order does not satisfy the statute.

The district court's disposition order of November 2005 did not make the statutorily mandated written findings.  The court concluded that continuing B.B.H. on probationary status for an indeterminate period "is presently in the best interests of the [c]hild."  But that bare conclusion is inadequate to inform our review.  See R.V., 702 N.W.2d at 307-08 (holding that district court's bare conclusion that stringent and regimented program best suited to help child rehabilitate is insufficient finding); In re Welfare of J.S.S., 610 N.W.2d 364, 367 (Minn. App. 2000) (holding that conclusory finding with minimal elaboration that child's best interests are served by disposition was inadequate).

Although the district court acknowledged that its November 2005 order did not include extensive findings regarding why its disposition was the least restrictive alternative, it also failed to adequately address why the best interests of B.B.H. would be served by the disposition, and it failed to remedy the noted deficiency.  See In re L.K.W., 372 N.W.2d 392, 400 (Minn. App. 1985) (noting that record must contain specific evidence that placement is suitable for specific needs of particular child to ensure placement serves child's best interests).  Additionally, because the district court's disposition ordered out-of-home placement and a change in custody for B.B.H., the rules of juvenile delinquency procedure required the district court to consider and make written findings as to why the disposition serves public safety, why public safety and the juvenile's best interests are not served by maintaining the status quo, and how the program available at the custodial placement serves the juvenile's needs.  See Minn. R. Juv. Delinq. P. 15.05, subd. 2 (requiring district court to make written findings and consider whether disposition serves established principles).  Out-of-home placement must be supported by evidence that the placement is the "least drastic step necessary to restore law-abiding conduct in the juvenile."  In re Welfare of M.R.S., 400 N.W.2d 147, 151 (Minn. App. 1987).

While the district court attempted to address the proportionality of the disposition in its amended order by considering the least restrictive alternative, it primarily relied on the fact that the sex-offender evaluation recommended inpatient treatment, and noted that its prior order indicated that all recommendations of the evaluation were to be followed.  But an evaluation "is not an adequate substitute for the requisite findings, even though it supports the district court's implicit determination that out-of-home placement is necessary to return [the juvenile] to law-abiding behavior."  R.V., 702 N.W.2d at 307.  Because the district court's order did not expressly substantiate the disposition with the statutorily required written findings, we reverse the disposition and remand for consideration of the necessary findings.  On remand, the district court may or may not choose to reopen the record and take more evidence.

III

B.B.H. also contends that requiring juveniles who are adjudicated delinquent for criminal sexual conduct to register as predatory offenders violates his right to due process because delinquency proceedings do not include a jury trial.  This court has previously rejected this challenge.  See In re Welfare of C.D.N., 559 N.W.2d 431, 434 (Minn. App. 1997) (holding that registration statute as applied to juveniles does not violate due process and is not inconsistent with rehabilitative purpose of juvenile court system), review denied (Minn. May 20, 1997).  We have also held constitutional the registration requirement for juveniles younger than age 14.  In re Welfare of J.R.Z., 648 N.W.2d 241, 249 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).  The supreme court has held that predatory registration requirements do not violate due process because they are "civil and regulatory in nature and are imposed in the interest of public safety."  Kaiser v. State, 641 N.W.2d 900, 905 (Minn. 2002).  Additionally, B.B.H.'s argument that the difference between juvenile adjudications and adult convictions is unconstitutional in terms of sentence enhancement and criminal-history scores has recently been considered and rejected by the supreme court.  State v. McFee, 721 N.W.2d 607, 618-19 (Minn. 2006).  B.B.H. asks this court to reconsider the settled precedent, urging that Minnesota's automatic registration requirement is "particularly onerous."  We decline to do so.

Affirmed in part, reversed in part, and remanded.

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.