This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-711

 

 

In the Matter of the Welfare of:

E.T.J.

 

 

Filed January 23, 2001

Affirmed

Holtan, Judge*

 

 

Ramsey County District Court

File No. J199554284

 

 

John M. Stuart, State Public Defender, Charlann Elizabeth Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Beth Gessner Sullivan, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Holtan, Judge.


U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellant E.T.J. challenges his adjudication of delinquency for second- and fourth-degree criminal sexual conduct and kidnapping, contending he was not competent to stand trial as a juvenile because he has a low IQ, ADHD, and multiple emotional problems.  Because the trial court gave proper weight to the evidence and did not err in finding appellant competent, we affirm.

FACTS

            In September 1999, the Ramsey County Attorney filed a petition against appellant E.T.J., a ten-year-old boy, alleging criminal sexual conduct in the second and fourth degree and kidnapping.  The petition stated that E.T.J. and other boys confined an eight-year-old girl in the closet of a vacant house and engaged in sexual contact with her.

In a rule 20 evaluation, Dr. Michael Moller found appellant competent to stand trial.  As a result, the court ordered a competency hearing.  At the hearing, appellant provided an expert, Dr. James Alsdurf, who had evaluated appellant.  In addition to reviewing Dr. Moller’s findings, Dr. Alsdurf interviewed appellant twice, and reviewed a 1996 diagnostic assessment of appellant.  In that assessment, appellant demonstrated an IQ of 72 on the Wechsler Intelligence Scale for Children (WISC).  This is on the low end of borderline, and ranked him in the lowest fourth percentile when compared to others his age.  Appellant had also been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in 1996.  Dr. Alsdurf did not conduct any new testing.  Based on his evaluation, Dr. Alsdurf found that appellant did not have the ability to consult with defense counsel with a reasonable degree of understanding, his ability to appreciate the consequences of the trial was poor, and appellant saw no real difference between being found guilty and not guilty.  He concluded that appellant was incompetent to stand trial because his ability to assist counsel was compromised and his appreciation of his legal situation was inadequate due to a number of intellectual and developmental deficiencies, including his low level of intellectual functioning for his age, and his attention deficit disorder.

At the close of the competency hearing, the state requested that Dr. Charles Rader be allowed to examine appellant.  To allow Dr. Rader time to examine appellant, the hearing was continued.  Dr. Rader reviewed Drs. Moller and Alsdurfs’ reports, the 1996 diagnostic assessment, school records, and police reports.  Dr. Rader also administered new tests.

Dr. Rader performed the Porteus Mazes test, which tests planning and foresight, and appellant scored in the superior range.  On the Peabody Picture Vocabulary Test, which measures receptive vocabulary, appellant scored his age equivalent of nine years, one month, with a standard score of 88, a low average.  Dr. Rader had appellant complete another WISC diagnostic assessment because appellant was only seven years old when he completed it in 1996.  Appellant scored a Verbal Comprehension Index of 83 on the assessment, which is high borderline for his age.  Dr. Rader administered the first two sub-tests of the Competence Assessment for Standing Trial for Defendant with Mental Retardation (CAST-MR).  On the first sub-test, appellant scored a 15 out of 19 of multiple choice, for a 79%, on juvenile-court-related questions.  The second sub-test is designed to assess the ability to assist in one’s own defense.  Appellant correctly answered 13 out of 15 questions, for a score of 87%.  Dr. Rader found appellant competent to stand trial.

After the competency hearing, the trial court found appellant competent to stand trial.  Prior to trial, appellant’s counsel moved for reconsideration of the competency finding, and for leave to present additional witnesses on the issue.  Appellant’s counsel renewed the motion orally on the first day of trial based on appellant’s difficulty in communicating with counsel.  The trial court denied the request.

On the second day of trial, appellant’s counsel made another motion for a competency assessment.  The trial court denied counsel’s request.  That same day, appellant’s counsel again requested a continuance for a new assessment.  Respondent’s counsel stated the state had no objection to another rule 20 evaluation, and the trial court deferred a ruling until all testimony concluded.  After the testimony, the court found appellant competent, but also agreed to have Dr. Rader examine appellant again.

Dr. Rader re-examined appellant and testified as the court’s expert that appellant continued to be competent.  Dr. Rader noted that appellant appeared to be manipulative, and seemed highly invested in portraying himself as incompetent when appellant stated that a co-defendant was found incompetent and was now at home instead of in the detention center.  Appellant stated that if he could be found incompetent, he could go home.  Before another test, appellant peeked at the testing cards and gave responses, but during the actual testing with those cards, appellant stated that he could not answer them because he was incompetent.  Dr. Rader also noted that appellant blocked the door and said he would not let Dr. Rader leave until he found appellant incompetent.  Dr. Rader believed appellant had the ability to cooperate but was choosing not to do so.

At the conclusion of the evidence, the trial court found appellant guilty of criminal sexual conduct in the second and fourth degrees and kidnapping.  Appellant now challenges the trial court’s finding of competence.

D E C I S I O N

I.

            To determine whether the trial court erred in finding competence, this court must independently review the record to decide whether the trial court gave “proper weight” to the evidence.  In re Welfare of D.D.N., 582 N.W.2d 278, 281 (Minn. App. 1998) (citing Drope v. Missouri, 420 U.S. 162, 179, 95 S. Ct. 896, 907 (1975)).  This court need not defer to the trial court, but must independently review the evidence and analyze the facts to determine whether the trial court made proper inferences from the evidence.  D.D.N., 582 N.W.2d at 281.

Appellant argues that since the competency standard is the same for adults and juveniles, the question of what impact age or developmental status would have on competence would never arise.  A child charged as delinquent has the same fundamental right as an adult defendant not to be tried or adjudicated while incompetent.  In re Welfare of S.W.T., 277 N.W.2d 507, 511 (Minn. 1979).  That right has been delineated in the rules of juvenile procedure:

                                    A child shall not be permitted to enter a plea or be tried or sentenced for any offense if the child lacks sufficient ability to:

                                    (1) consult with a reasonable degree of rational understanding with defense counsel; or

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

 

Minn. R. Juv. P. 20.01, subd. 1(B). 

Appellant goes on to argue that age is not the determining factor but it is a significant one.  Appellant was ten years of age when the crime was committed, which is the minimum for delinquency jurisdiction.  See Minn. Stat. § 260C.007, subd. 4(12) (defining CHIPS as child who committed delinquent act before becoming ten years old).  While appellant’s young age must be factored into his competence, appellant has shown testing results that are similar to the appellant in D.D.N; and, therefore, like D.D.N., appellant should be found competent.  D.D.N. was 15 years old at the time of the crime.  D.D.N., 582 N.W.2d at 279.  Because of competency concerns, the court ordered D.D.N. to undergo an evaluation.  Id.  D.D.N. was found to have a “low average” performance IQ, and his verbal IQ was “intellectually deficient.”  Id. at 281.  “The testing also showed that appellant had ‘very limited verbal memory, poor verbal abstraction abilities, minimal verbal reasoning and a marginal vocabulary.’”  Id. Nevertheless, following lay and expert testimony, D.D.N. was found competent.  Id. at 279.

In this case, appellant scored a high borderline score for intelligence verbal comprehension and low average score for receptive vocabulary.  In fact, because of the results from the extensive testing performed on appellant by Dr. Rader, the trial court found appellant competent to stand trial.  The trial court also noted that appellant’s expert, Dr. Alsdurf, did not perform any new tests but only relied on the 1996 diagnostic assessment.

Appellant has also shown an understanding of his situation and the juvenile process through the observations of Dr. Rader.  Dr. Rader noted that he believed appellant was highly invested in portraying himself as incompetent because he knew a co-defendant went home when he was found incompetent.  Appellant also attempted to bar the door and not let Dr. Rader leave until Dr. Rader found appellant incompetent.

With respect to appellant’s limited intellectual abilities and his young age, the trial court gave proper weight to the evidence and properly inferred from the evidence that appellant was competent to stand trial.

            Affirmed.

 



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