In the Matter of the Welfare of:  A.C.H., Child.

In the Matter of the Welfare of:  A.C.H., Child. A06-2365, Court of Appeals Unpublished, May 29, 2007.

This opinion will be unpublished and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

A06-2365

 

In the Matter of the

Welfare of:  A.C.H., Child.

 

Filed May 29, 2007

Reversed
Klaphake, Judge

 

Wright County District Court

File No. 86-JV-06-5284

 

John M. Stuart, State Public Defender, Jane E. Rydholm, Special Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant A.C.H.)

 

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

 

Thomas N. Kelly, Wright County Attorney, Scott M. Sandberg, Assistant County Attorney, 10 Second Street N.W., Suite 400, Buffalo, MN  55313 (for respondent State of Minnesota)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant A.C.H. challenges an order certifying him as an adult on charges of first-degree criminal sexual conduct and kidnapping.  See Minn. Stat. §§ 609.342, subd. 1(e)(i), 609.3455, subd. 1(7), 609.25, subds. 1(2), 2(2) (2006).  Appellant argues that he provided clear and convincing evidence that retaining him in the juvenile system under the extended jurisdiction juvenile (EJJ) statute would serve public safety as set forth in Minn. Stat. § 260B.125 (2006).  Because the evidence fails to support the district court's finding that insufficient time remained to effectively supervise appellant and rehabilitate him within the juvenile system before his 21st birthday, we reverse the district court's certification order.

FACTS

            For purposes of a certification hearing, the charges against the juvenile are presumed true.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).

            At approximately 7:00 p.m., on the evening of August 7, 2006, 20-year-old N.L.D. arrived at a beach in Buffalo, Minnesota, to party with friends.  Appellant, who was 17 years old and was there with two male friends, started talking to N.L.D.  At about 10:15 p.m., N.L.D.'s other friends left and she decided to give appellant and his two friends a ride to a party.  Prior to leaving the beach, N.L.D. discovered that her cell phone was missing.

            N.L.D. drove appellant and his two friends to the party, where they stayed for several hours.  At approximately 2:15 a.m., N.L.D. drove appellant and his two friends back to the beach to retrieve a backpack that she had left there.  N.L.D. decided to go "skinny dipping," and tried to coax appellant and his friends into the water.  The three stripped down to their boxers, but they did not know how to swim.  According to appellant, N.L.D. was flirting with them and pulling on their boxers to try to get them into the water.

            When N.L.D. came out of the water, appellant placed his arm around her, and they walked to a location at the far end of the beach.  N.L.D. claims that appellant held her against a stone wall and forced her to have sex; appellant claims that the sex was consensual.  N.L.D. claims that appellant then pushed her to the sand, where they had sex again, both vaginally and orally, and that at one point appellant placed sand on his penis.  When appellant saw that his friends were watching, he asked, "Do you want some of this too?"  One of his friends came over and touched N.L.D.'s breast.

            After the assault, N.L.D. dropped appellant's friends off at an apartment and continued to drive around with appellant, first to a convenience store and then to a restaurant, where several police cars were parked.  N.L.D. and appellant sat at a table in the restaurant, where she had conversations with a police officer and with a male friend who was working that night.  N.L.D. claimed that she did not tell anyone what had happened to her or otherwise try to flee because she was afraid of retaliation and because she wanted her cell phone back.

            At about 5:00 a.m., N.L.D. drove appellant back to the apartments.  Appellant entered the building; a short time later, N.L.D. followed him inside to get his cell phone number.  Appellant walked N.L.D. back out to her car, gave her a hug, and she left.  Later that morning, N.L.D. told a couple of her male friends that she had been sexually assaulted.  At their urging, she reported the incident to police.

            A petition for juvenile delinquency was thereafter filed.  The district court found that probable cause existed to support the petition and that certification was presumed.

            A two-day certification hearing was held in late October and early November 2006.  The defense called licensed psychologist James Gilbertson, who testified that he has prepared approximately 180 certification studies since 1972.  Dr. Gilbertson diagnosed appellant as suffering from ADHD, with "poor impulse control," and estimated appellant's "risk of sexual re-offense to be low moderate."  Dr. Gilbertson explained that appellant is "treatment naïve" because he has no exposure to treatment or programming, and further opined that appellant is not a sexual predator and that in his experience, appellant "has a fairly limited profile of previous delinquency," with no pattern of interpersonal aggression or sexual boundary issues.  Dr. Gilbertson further testified that appellant would have adequate time to complete treatment before his 21st birthday because he had no conduct disorder, he was not a psychopath or sociopath, and exhibited no evidence of paraphilia.  Dr. Gilbertson explained that appellant is not "damaged" like some juveniles he has evaluated and that appellant has a personality and behavioral profile that can change.

            In his certification study, Dr. Gilbertson examined the six statutory public safety factors, but declined to make a recommendation as to whether appellant had successfully rebutted the presumption of certification because he believed that was a legal determination for a court to make.  Dr. Gilbertson did, however, opine that while the first two factors (involving the seriousness of the offense and appellant's culpability) tended to support the presumption of certification, the last four (involving appellant's prior minimal prior record, programming history, the adequacy of available programming, and the availability of dispositional options in the juvenile justice system) all tended to rebut that presumption. 

            The defense also called Amy Butler, who is a "dispositional advisor" with the state public defender's office, to testify regarding treatment options available to appellant in the juvenile system.  Butler contacted a number of programs and indicated in her report and testimony that several were willing to admit appellant for further evaluation.

            The state called Wright County Probation Officer Brian Stoll to testify regarding his recommendation and certification study.  Stoll, who has been a probation officer for four years, testified that this was his first certification study and the most serious case he has ever seen.  Stoll testified that he contacted appellant's former probation officer in Chicago, who stated that appellant was violent, aggressive, and failed to take responsibility for his behavior.  Stoll obtained appellant's most recent school transcript, which indicated that appellant had failed most of his classes in the past two years and was tardy or absent numerous times.  Stoll further testified that he had received an incident report from Lino Lakes, where appellant is currently being held, in which appellant had broken rules and attempted to communicate with a female inmate.  Stoll testified that he did not believe there was enough time for appellant to complete programming and follow-up supervision under EJJ.  Based on appellant's age at the time of the offense, the seriousness of the offense, appellant's history of not following through with probation conditions, and the lack of secure juvenile treatment facilities, Stoll recommended that appellant be certified as an adult.

            On rebuttal, the defense called Sara Stibbitz, who is an investigator with the state public defender's office.  Stibbitz testified that when she contacted appellant's former probation officer in Chicago, he was upset about Stoll's use of his words.  The officer told Stibbitz that he believed appellant should remain in the juvenile system and that he was amenable to treatment.

            The district court thereafter issued an order in which it made findings on each of the six public safety factors.  The court concluded that appellant had failed to rebut the presumption of certification by clear and convincing evidence.

D E C I S I O N

            A district court has "considerable latitude" in deciding whether to certify a juvenile for adult prosecution.  In re Welfare of H.S.H., 609 N.W.2d 259, 261 (Minn. App. 2000) (quotation omitted).  We will not reverse an adult-certification order unless the district court's findings are "clearly erroneous so as to constitute an abuse of discretion."  Id. (quotation omitted).

            When, as here, the certification is presumptive, the burden is on the juvenile to prove by "clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety."  Minn. Stat. § 260B.125, subd. 3 (2006).  In determining whether certification serves public safety, the district court considers the following six statutory factors:  (1) the seriousness of the alleged offense, including victim impact, use of a firearm, and the presence of aggravating factors recognized by the sentencing guidelines; (2) the culpability of the juvenile in committing the alleged offense, including planning and carrying out the crime, and the presence of recognized mitigating factors under the sentencing guidelines; (3) the juvenile's prior delinquency record; (4) the juvenile's programming history; (5) the adequacy of programming or punishment in the juvenile justice system; and (6) the available dispositional options.  Id., subd. 4 (2006).  Factors (1) and (3), the seriousness of the offense and the juvenile's prior record, are key and must be given greater weight.  Id.

            1.         Seriousness of Alleged Offense

            On the first key factor, the seriousness of the charged offense, the district court found in favor of adult certification and against EJJ designation.  Appellant argues that because all offenses involved in a presumptive certification case are "serious," the facts of each case must be examined to determine whether the charged offense is more serious than the typical offense.  We agree:  the EJJ statute refers to aggravating factors under the sentencing guidelines, which generally require conduct on the part of a defendant that is "significantly more . . . serious than that typically involved in the commission of the crime in question."  State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984); see Minn. Sent. Guidelines II.D. (authorizing district court to depart from presumptive sentence if offense involves "substantial and compelling circumstances").

            Appellant insists that although the charges against him are serious, some of the undisputed facts suggest that no aggravating factors were present.  Unlike many cases involving certification, this case does not implicate a high concern for public safety.  Dr. Gilbertson testified that the offense was isolated and one of opportunity, rather than predation.  Nevertheless, both Dr. Gilbertson and probation officer Stoll believed that this factor supported certification because this was a violent crime with multiple acts.  Multiple penetrations are considered an aggravating factor and tend to make appellant's conduct more serious than the typical rape.  See State v. Yanez, 469 N.W.2d 452, 456 (Minn. App. 1991), review denied (Minn. June 19, 1991).  We therefore conclude that the district court's finding that this factors supports appellant's certification as an adult is not clearly erroneous.

            2.         Culpability of Juvenile

            On this second factor, the district court found that appellant "had a high level of culpability" because he "initiated the sexual assault with some forethought and was the primary aggressor" and because no mitigating factors were present.  Both Dr. Gilbertson and agent Stoll concluded that this factor favored certification.

            Appellant argues that in determining whether public safety will be served by EJJ designation, the district court must consider the circumstances surrounding the charged offense, including the level of planning involved.  Appellant refers to Dr. Gilbertson's opinion that the offense here was driven by a variety of factors, including the victim's own boundary issues, and to his description of the offense as an "opportunistic engagement."  While this factor could be viewed as more neutral, we cannot conclude that the district court's finding on this factor is clearly erroneous.

            3.         Juvenile's Prior Record of Delinquency

            Along with the first factor involving the seriousness of the offense, this factor is to be given greater weight.  Appellant notes that he only has a minor record of delinquency that includes misdemeanor battery and possession of marijuana offenses.  The district court did not indicate how the weight of appellant's minimal record was factored into the court's decision, but merely found that his record did not demonstrate an escalating pattern of violent offenses or sexual aggression.  When this factor is properly given the additional weight it should receive, we believe that it supports appellant's retention in the juvenile system as an EJJ.

            4.         Juvenile's Programming History

            As the district court found, appellant has not had any formal programming or treatment.  Appellant argues that the court nevertheless appears to have construed this factor against him when it concluded that he "therefore is unable to show a willingness to submit to programming in a meaningful way versus rejection of treatment efforts."  Because appellant has not been given an opportunity to participate in prior programming, this factor cannot support certification.  See In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).

            5.         Adequacy of Punishment or Programming Available

            The district court found that this factor favored certification because there was "insufficient time for supervision of [appellant's] rehabilitation with [EJJ] status" and that the "punishment [appellant] would receive [under EJJ status] is inadequate and disproportionate compared to the presumptive adult sentence of these offenses."  As discussed more thoroughly below, appellant presented clear and convincing evidence that appropriate programs in the juvenile system were available and willing to accept him, and that sufficient time remained for him to complete treatment and benefit from one of those programs.

            6.         Dispositional Options Available for Juvenile

            The district court found that appellant has shown that "there are treatment options available and willing to treat him under [EJJ] status," that he is "amenable to treatment," and that he "is in the low to moderate range for sexual offense recidivism."  The court nevertheless found that the time available for treatment before appellant's 21st birthday was insufficient to provide for an "adequate period of supervision upon the completion of treatment and aftercare to preserve public safety."

            Appellant insists that the district court's finding is contrary to the evidence, and points to Dr. Gilbertson's testimony and report and to the testimony presented by Amy Butler.  Dr. Gilbertson assumed that appellant had 37 months remaining before his 21st birthday, that most programs run for 12 to 18 months, and that appellant would need an additional 9 months at a half-way house; Butler testified that she found several programs that were willing to evaluate appellant.  While agent Stoll testified that he did not believe there would be enough time to adequately supervise appellant after his initial programming, his opinion is speculative because it is not based upon any first-hand knowledge regarding available programs.  The district court's finding on this factor is thus clearly erroneous because it is unsupported by the evidence.

            We therefore conclude that appellant has successfully rebutted the presumption of certification by presenting clear and convincing evidence that retaining him in the juvenile system as an EJJ would serve public safety.  As the supreme court recently observed:

The intent of the EJJ designation is to give juveniles one last chance at success in the juvenile system, with the threat of adult sanctions as an incentive not to reoffend.  An initial juvenile disposition reinforced by the possibility of adult sanctions gives juveniles a certainty of punishment combined with an opportunity to be successful in the juvenile system.  Thus, unlike certified juveniles, EJJs are given one last chance at rehabilitation in the juvenile system before being subjected to adult sanctions.

 

State v. Garcia, 683 N.W.2d 294, 300 (Minn. 2004) (quotations omitted).  Because the district court failed to give sufficient weight to some findings, particularly the finding that appellant had no programming history, and because other findings, particularly its findings on the adequacy and availability of programming in the juvenile system, are clearly erroneous, we conclude that the district court abused its discretion by failing to retain appellant in the juvenile system as an EJJ.  We therefore reverse the district court's order certifying appellant as an adult.

            Reversed.