This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Welfare of: J.S.K., Child.
Itasca County District Court
File No. J90150607
John M. Stuart, State Public Defender, Charlann Winking, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John J. Muhar, Itasca County Attorney, Michael J. Haig, Assistant County Attorney, Itasca County Courthouse, 123 NE 4th Street, Grand Rapids, MN 55744 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Hudson, Judge.
Finding that appellant committed gross misdemeanor fifth-degree criminal sexual conduct, but not third-degree criminal sexual conduct, the district court adjudicated appellant delinquent which required him to register as a predatory sex offender. On appeal, appellant argues that the court should have stayed his adjudication. We affirm.
On June 10, 2001, 17-year-old appellant, J.S.K., spent the afternoon swimming near his house with several friends, J.E., L.R., and S.M. After swimming, the group walked back to appellant’s house, and spent the evening watching television in the basement. S.M., L.R., and J.E. decided to spend the night at appellant’s house because of car trouble. L.R. and J.E. decided to sleep on the couch in the room where they were watching television. Appellant went upstairs to use the bathroom before going to bed, and when he returned, S.M. was on his bed, fully clothed.
S.M. testified that appellant tried to give her a back massage, but she refused the offer. S.M. said that appellant next tried to kiss her, but she pushed him away and told him to “knock it off.” According to S.M., appellant did not stop, but continued his attempts to kiss her. Appellant got on top of her and fondled her breasts, despite S.M.’s continued resistance. S.M. testified that, eventually, appellant took off her pants and underwear and attempted to have intercourse with her, but did not accomplish penetration.
As S.M. attempted to locate her clothes so that she could leave, appellant apologized and said he just wanted to see how she would react if someone tried to rape her. S.M. could not find her underwear, so she put her pants on and left. S.M. walked along the highway during the early-morning hours until someone stopped to give her a ride home. Later that morning, S.M. told her mother that appellant tried to rape her. On June 12, 2001, S.M. and her mother reported the incident to the Bovey Police Department. While executing a search warrant, officers found S.M.’s underwear in appellant’s bedroom.
Appellant was charged by juvenile delinquency petition with attempted criminal sexual conduct in the third degree in violation of Minn. Stat. §§ 609.344, subd. 1(c), .17, subd. 1 (2000) (attempt), and gross misdemeanor criminal sexual conduct in the fifth degree in violation of Minn. Stat. § 609.3451, subd. 1(1) (2000). The district court found that the state failed to prove the felony charge beyond a reasonable doubt, but found that appellant committed fifth-degree criminal sexual conduct. At the disposition hearing, appellant argued that a stay of adjudication was in his best interests because the court found that appellant did not commit the more serious felony charge, and that delinquency adjudication, even of the lesser charge, triggered mandatory registration as a predatory sex offender. The district court adjudicated appellant delinquent and this appeal followed.
When reviewing a district court’s delinquency disposition, this court looks only for an abuse of discretion. In re Welfare of J.B.A., 581 N.W.2d 37, 38 (Minn. App. 1998), review denied (Minn. Aug. 31, 1998). For each count found proven, the district court must “adjudicate the child delinquent * * * or * * * continue the case without adjudicating the child delinquent,” and order a proper disposition. Minn. R. Juv. P. 15.05, subd, 1. A district court enjoys broad discretion in deciding whether or not to stay an adjudication of delinquency. In re Welfare of J.R.Z., 648 N.W.2d 241, 244-45 (Minn. App. 2002). The district court may continue a case for up to 90 days, and may further extend this period for an additional 90 days after reviewing the case, without an adjudication of delinquency. Minn. Stat. § 260B.198, subd. 7 (2000). The court may do so when, in its judgment, it is in the best interests of the child and the public’s safety. Minn. R. Juv. P. 15.05 subd. 4(A). A district court does not abuse its discretion by imposing an adjudication authorized by statute. J.B.A., 581 N.W.2d at 39. Finally, Minn. Stat. § 243.166, subd. 1(a)1(iii) (2000) requires juveniles adjudicated delinquent for certain sex offenses to register as “predatory offenders” for ten years.
A juvenile who commits third-degree criminal sexual conduct must register as a sex offender; conversely, a juvenile who commits fifth-degree criminal sexual conduct is not so required. See id. But, where a juvenile is alleged to have committed both offenses, is found to have committed only the lesser offense, and is adjudicated delinquent for that offense, the juvenile must still register as a sex offender where both offenses were part of the same behavioral incident. Id. Here, appellant was alleged, but not found to have committed, third-degree criminal sexual conduct, an offense requiring registration. Appellant was also alleged, and actually found to have committed, fifth-degree criminal sexual conduct. Because he was adjudicated delinquent of this offense, arising out of the same circumstances as third-degree criminal sexual conduct, he was required to register as a predatory sex offender. See id.
The district court was mindful of its discretion to stay the adjudication and specifically quoted Minn. R. Juv. P. 15.05, subd. 4(A) in its disposition order. In denying appellant’s request to stay his adjudication, the district court cited appellant’s prior record, including his most recent offense that occurred while this matter was pending, his unwillingness to accept responsibility for his actions, and his need of future treatment. Although the district court found that neither appellant nor S.M. were entirely credible, it determined after hearing the testimony and weighing the evidence that appellant had initiated nonconsensual sexual contact in violation of Minn. Stat § 609.3451, subd. 1(1). Significantly, the district court stated:
Either way, your actions show a disregard for the feelings and the body of another human being. Other people are not on earth for you to do what you want with them. [S.M.’s] body is hers to do with as she wants done with it, not as you want done with it. And in reading the reports, at least there is some indication that you don’t fully comprehend that. And I don’t even mean with just [S.M.] but perhaps other people out there too, and that’s one of the concerns about safety of the public. And that’s one of the reasons I did not give you a stay of adjudication right now.
Appellant notes that district courts have stayed adjudication to allow the respective juveniles to avoid sex offender registration. In re Welfare of M.A.R., 558 N.W.2d 274, 276 (Minn. App. 1997) (staying 12 year-old-boy’s delinquency adjudication of first-degree criminal sexual conduct to avoid sex offender registration); State v. Krotzer, 548 N.W.2d 252 (Minn. 1996) (staying adjudication and declining to accept 19 year-old-boy’s third-degree criminal sexual conduct guilty plea due to unique circumstances of case). But district courts have broad discretion in deciding whether a stay is appropriate. Equally important, M.A.R. and Krotzer are factually distinguishable.
In M.A.R., which involved a 12-year-old boy, the juvenile court specifically found that it was in the best interests of the child that he not be adjudicated delinquent, as he had “done the best he could” regarding his treatment. M.A.R., 558 N.W.2d at 275. In contrast, the district court, here, found that appellant, who was 17 years old, still needs to address his system of denial, and become truthful regarding his behavior without rationalizing it. Appellant’s reliance on Krotzer is similarly misplaced. Krotzer involved “statutory rape” and stayed adjudication of 19-year-old who had engaged in consensual sexual intercourse with his 14-year-old girlfriend. Krotzer, 548 N.W.2d at 253. In Krotzer, the 14-year-old’s mother approved of a continuing nonsexual relationship between Krotzer and her daughter. Id. Further, as Krotzer noted, that offense involved no aggression, but rather “special” circumstances that required “unusual” judicial measures to avoid an injustice. Id. at 253-54.
No such special circumstances are present in this case. Here, the court found that appellant had initiated nonconsensual, aggressive, sexual contact with S.M. Appellant’s sexual assault traumatized S.M., and S.M. testified that she is receiving treatment for depression as a result of this incident. Appellant suggests that a stay was appropriate here because the state “overcharged” the case with the third-degree criminal sexual conduct charge, but the record shows otherwise. S.M. testified that appellant pinned her arms down with his legs, then removed her pants and underwear over her physical resistance and oral protests. S.M. said appellant attempted vaginal penetration despite her protests and fear. On these facts, the state had probable cause to charge appellant with attempted third-degree criminal sexual conduct.
In some cases, we have recognized that the rigid requirement of registration and its significant, long-term collateral consequences are inconsistent with the rehabilitative goals of juvenile court. See, e.g., M.A.R., 558 N.W.2d at 276. And this court has invited the legislature to reassess the “prudence” of requiring all juveniles (especially very young offenders) adjudicated delinquent for criminal sexual conduct to register as sex offenders. J.R.Z., 648 N.W.2d at 249; In re Welfare of C.D.N., 559 N.W.2d 431, 435 (Minn. App. 1997), review denied (Minn. May 20, 1997). But the legislature has not yet accepted our invitations.
The district court made its decision within the bounds of the relevant law and “imposing an adjudication within the limits proscribed by the legislature is not an abuse of discretion.” J.R.Z., 648 N.W.2d at 245 (quotation omitted). We conclude that the district court acted within its discretion by adjudicating appellant delinquent, despite the long-term collateral consequences.
RANDALL, Judge (concurring specially).
I concur in the result. On these facts, I agree with the majority that the district court was well within its discretion in not staying adjudication, but rather adjudicating appellant delinquent. Unfortunately, an inflexible and almost bizarre rule of law (one that supports the oft-mentioned maxim “beware of the unintended consequences”) now requires appellant, a child, to register as a predatory sex offender. This registration requirement is laid upon a 17-year old who was charged with felony attempted sexual conduct in the third degree, but was found guilty only of a gross misdemeanor, criminal sexual conduct in the fifth degree. See Minn. Stat. §§ 609.344, 609.3451 (2000) (defining third-degree and fifth-degree criminal sexual conduct). Criminal sexual conduct in the fifth degree does not mandate registration as a predatory sex offender for adults, let alone juveniles. However, as the majority points out, if a child is charged with any offense enumerated as requiring registration, but is later adjudicated delinquent for something not requiring registration, the child must still register as a sex offender if the delinquent act arose “out of the same set of circumstances” that led to the initial, greater charge. This is a rare occasion in the history of the United States of America! The presumption of innocence embedded in both the U.S. Constitution and the Minnesota Constitution is swept aside in favor of a “rule” that says you are “guilty” and must register as a predatory sex offender simply because you were “charged” with an offense requiring registration, even though that charge did not stick. Your absolute right to plead not guilty and stand trial, which may result, as here, in a conviction/adjudication for an offense not requiring registration as a predatory sex offender, is rendered almost meaningless. The charge itself is its own judge, jury, and executioner! To worsen the situation, district court judges have no discretion not to require registration when you have been convicted of a crime that, on the surface, calls for registration; even worse yet, there is no discretion for district court judges to withhold the requirement to register as a predatory sex offender in those situations, as here, when you have been convicted/adjudicated guilty of something that does not require registration.
I suggest there is a strong constitutional separation of powers issue here. State v. Olson, 325 N.W.2d 13, 17 (Minn. 1982) (holding that imposition of a sentence within legislative guidelines is purely a judicial function). Legislatures determine sentences. But judges sentence! Within the framework of not exceeding the statutory maximum, the sentencing judge is the first hands-on entity with the power to order presentence investigations, solicit recommendations and supporting documents from the state and the defendant, and see the defendant up close and personal. Legislatures simply describe sentences for the general public, “crimes at large,” so to speak. The individual sentence, within the framework of the general statute, is supposed to be up to the court.
The district court judge is the person seeing the actual defendant. Even within the framework of the Minnesota Sentencing Guidelines, in place since 1980, district court judges have the ability to depart downward and to depart upward on the length of sentences. It makes for a more rational sentencing policy if that ability to depart also attaches to collateral matters such as registration as a sex offender when that label itself is a second and a harsh penalty with a life of its own.
There is one isolated crime, murder in the first degree, where the legislature sets the sentence, life imprisonment, and the imposition of that sentence is mandatory on the sentencing judge, but all other defendants appear for sentencing (99% plus do not appear for sentencing for murder in the first degree) before a judge who has some discretion to fashion an appropriate sentence. See Minn. Stat. § 609.106 (2000). Here, as the majority correctly sets out, appellant, the state, and the district court judge here were aware of the district court’s power to stay adjudication of delinquency to avoid the harsh penalty of registration of a child as a predatory sex offender. The problem is, the district court’s flexibility was limited, to me improperly so. When the district court judge wishes to spare the child the harsh penalty of registration, he must stay the adjudication, even when he has solid reasons for adjudicating the child delinquent. Why should the judge’s hands be so tied? In an ideal world where legislatures understand the role of district court judges, mandatory minimums, mandatory enhancements, and mandatory registrations would be subject to the flexibility and discretion of the district court to fashion an appropriate sentence.
Common sense and decency demand that, at least when you are convicted of something that does not require registration, the sentencing judge should, in that instance, have the ability not to impose registration as a sexual offender, the second penalty, which can be the harshest of all.
 Minn. Stat. § 609.344, subd. 1(c) provides, in pertinent part, that an individual who “uses force or coercion to accomplish * * * [sexual] penetration” is guilty of third-degree criminal sexual conduct.
Minn. Stat. § 609.17, subd. 1 (governing attempts) provides that an individual who,
with intent to commit a crime, does an act which is a substantial step toward, and more than mere preparation for, the commission of the crime, is guilty of an attempt * * * .
 If you have a felony or a gross misdemeanor record, that is not a “plus.” When you apply to college, graduate school, the military, a civil service job, or choose to enter a profession where there will be contact with the young or the elderly, such as education, medicine, hospital work, rest homes, etc., you will have some explaining to do as a “sexual predator.” Perhaps you will have all the qualifications for that hoped-for position, but a criminal record may keep you from realizing that goal. But, I suggest, there may be several gross misdemeanors and felonies that if you had the Hobson’s choice of bearing one of those, or the label “predatory sex offender,” in the interview, you would choose the criminal record.