This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the Welfare of:  S.P.W.


Filed September 19, 2006


Wright, Judge


Scott County District Court

File No. 70-JV-05-8875



Jane E. Rydholm, Special Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant S.P.W.)


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


Patrick J. Ciliberto, Scott County Attorney, Debra J. Lund, Michael J. Groh, Assistant County Attorneys, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN  55379 (for respondent State)



            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N


Appellant argues that the district court erred when it designated a third-degree felony assault charge as an extended-jurisdiction-juvenile prosecution because the state failed to prove by clear and convincing evidence that the designation served public safety as required by Minn. Stat. § 260B.130, subd. 2 (2004).  We affirm.


On April 26, 2005, a delinquency petition was filed alleging that 16-year-old S.P.W. committed third-degree felony assault, a violation of Minn. Stat. § 609.223, subd. 1 (2004).  The alleged assault occurred during an altercation on April 25, when S.P.W., a student at the Minnesota River Valley Special Education Cooperative (MRVSEC), punched a classmate in the mouth and stood over him until MRVSEC staff intervened.  The classmate’s injury required stitches.

The state moved for designation of the case as an extended-jurisdiction-juvenile (EJJ) prosecution.  At a July 25 hearing on the motion, the state presented an EJJ study conducted by Kris Nygaard, S.P.W.’s probation officer, and a psychological report prepared by Dr. Robert Peterson.  Although S.P.W. requested the psychological report, S.P.W. moved to exclude it because the report was completed as an adult-certification study under Minn. R. Juv. Delinq. P. 18.04 rather than as an EJJ study under Minn. R. Juv. Delinq. P. 19.03.  The district court denied the motion, noting that the psychological report addressed several EJJ public-safety factors even though it had been completed as an adult-certification study.

During the hearing, Nygaard testified regarding S.P.W.’s extensive juvenile-delinquency history of more than 30 adjudicated offenses and probation violations.  Nygaard also observed that, in addition to the pending disorderly conduct and domestic-assault charges addressed in the EJJ study, S.P.W. had another pending disorderly conduct charge that had not been included in the study.  Nygaard described S.P.W.’s many placements in programs ranging from group therapy to community service, noting that, even when Nygaard had driven S.P.W. to one court-ordered community-service program, S.P.W. failed to complete the program because he ran away.  Nygaard recommended an EJJ prosecution based on “[S.P.W.’s] criminal history, the offenses he has committed, his participation in probation, [and] his unwillingness to confront the problems he has had.”  Nygaard added that S.P.W. had requested an EJJ prosecution because “that would keep him out of trouble.” 

Although his psychological report was received in evidence, Dr. Peterson did not testify at the hearing.  The defense presented the testimony of Dan Dierfelt, a social worker at MRVSEC, and Nedra Mahaney, S.P.W.’s guardian ad litem.  Both testified that S.P.W.’s rehabilitation needs could be served in the juvenile system without an EJJ prosecution.

            In an order dated August 10, 2005, the district court granted the state’s motion to designate S.P.W.’s third-degree assault case as an EJJ prosecution.  The district court concluded that “[S.P.W.] will need extensive treatment and programs in order to assure public safety and assist him in changing his patterns of delinquency as he enters adulthood.”  This appeal followed.


In an EJJ prosecution, if a juvenile is adjudicated delinquent for the alleged offense, both an adult criminal sentence and a juvenile disposition are imposed.  In re Welfare of D.M.D., Jr., 607 N.W.2d 432, 434 (Minn. 2000).  “The adult sentence is stayed on the condition that the juvenile does not violate the terms of the disposition or commit a new offense.”  Id.  An EJJ designation extends the juvenile court’s jurisdiction until the juvenile reaches age 21.  Id. 

A district court shall designate a proceeding an EJJ prosecution if the state proves by clear and convincing evidence that the designation will serve public safety.  Minn. Stat. § 260B.130, subd. 2 (2004).  The clear-and-convincing-evidence standard “requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.”  Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978).  The district court considers the following six factors when determining whether an EJJ prosecution would serve public safety:

(A) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the Minnesota Sentencing Guidelines, the use of a firearm, and the impact on any victim;

(B) the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the Minnesota Sentencing Guidelines;
(C) the child’s prior record of delinquency;

(D) the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;
(E) the adequacy of the punishment or programming available in the juvenile justice system; and

(F) the dispositional options available for the child.


Minn. R. Juv. Delinq. P. 19.05.  The seriousness of the offense and the juvenile’s prior record are given more weight than the other factors.  Id.  We review a district court’s designation of a proceeding as an EJJ prosecution for clear error.  D.M.D., 607 N.W.2d at 437. 


            S.P.W. argues that the state did not prove by clear and convincing evidence that designation of S.P.W.’s case as an EJJ proceeding would serve public safety.  We address each of the public-safety factors in turn to determine whether the district court clearly erred in its evaluation of the factors.

As to the first factor, offense seriousness, the district court found that the “alleged offense is a serious one in terms of community safety.  The offense resulted in physical injury to the victim . . . .”  The undisputed facts in the record support this determination.  S.P.W. admitted that he punched a classmate in the face.  Both the EJJ study and the psychological report termed the offense “serious.”  We are mindful that this was a single punch.  But S.P.W. continued to stand over the victim in a menacing manner until school officials intervened, and the injury required stitches.  The district court did not clearly err when it determined that the offense was a serious one in terms of public safety.

Regarding the second factor, culpability, the district court found that S.P.W. admitted “that the incident could have been avoided and that he was willing to take responsibility for his actions.”  Moreover, Nygaard’s testimony that none of the mitigating factors recognized under the sentencing guidelines applies to S.P.W. supports this finding.  See Minn. R. Juv. Delinq. P. 19.05(B) (requiring consideration of “existence of any mitigating factors recognized by the Minnesota Sentencing Guidelines”).  Although Dierfelt testified that a factor contributing to the escalation of the argument between S.P.W. and his classmate was the presence of a substitute teacher in the classroom, we are not persuaded by the argument that this factor mitigates S.P.W.’s culpability.

When examining the third factor, a juvenile’s prior delinquency record, we consider whether the behavior is ingrained and appears to be escalating.  In re Welfare of H.S.H., 609 N.W.2d 259, 262-63 (Minn. App. 2000); In re Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  The district court found that S.P.W.’s “delinquency history, dating back to 2001, includes thirty charges . . . he has a criminal history score of 1.”  And the record contains evidence of escalation.  Although S.P.W.’s delinquency history until this point had not involved serious crimes against persons, the alleged offense is a felony assault.  A juvenile cannot receive an EJJ designation solely based on the alleged offense.  D.M.D.,607 N.W.2d at 437.  But here, evidence of several burglaries and pending domestic-assault and disorderly conduct charges also was presented.  See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (concluding that to require juvenile court to ignore pending charges would unduly limit ability to accurately assess risk to public safety), review denied (Minn. Aug. 20, 1996).  Moreover, the district court credited the psychological report’s conclusion that S.P.W. could be developing an antisocial personality disorder. 

S.P.W. argues that his delinquency history is similar to that of the juvenile in In re Welfare of B.N.S., 647 N.W.2d 40 (Minn. App. 2002), a case in which we reversed an EJJ designation.  But the facts here are clearly distinguishable from those in B.N.S.  The alleged offense in B.N.S. was a burglary, not an offense resulting in injury to another person.  647 N.W.2d at 41.  Nor was there evidence of other pending offenses against persons.  Id. at 43.  Moreover, in B.N.S., “[t]he district court failed to address at the hearing or in its written order whether there [was] clear and convincing evidence that public safety will be served by the EJJ designation.”  Id. at 44.  In contrast to the district court’s decision here, the district court in B.N.S. improperly granted the EJJ designation for reasons other than public safety.  Id.  Accordingly, our decision in B.N.S. does not support reversal of the EJJ designation here.

As to the fourth factor, placement and programming history, the district court found that S.P.W. has had “numerous services provided to him. . . .  Despite the consequences imposed, placements made, and services provided, [S.P.W.] has struggled to comply with his court ordered conditions and has had numerous probation violations. . . .”  The record, particularly Nygaard’s EJJ study and testimony, reflects S.P.W.’s mixed history with programming in the juvenile system.  Despite testimony that S.P.W. has completed a few programs in less than the maximum amount of time allotted, the volume of different placements attests to S.P.W.’s difficulties participating meaningfully in the programs offered.

Finally, regarding the fifth and sixth factors, the parties are in agreement that S.P.W. is in need of, and would benefit from, more services.  The psychological report indicated that S.P.W. appears willing to change.  Dierfelt testified that S.P.W. could participate meaningfully in programming within the juvenile system.  Mahaney testified that S.P.W. is open to taking responsibility for his actions and making life changes.  And S.P.W. indicated that an EJJ designation might help motivate him to stay out of trouble.  The district court found that “several juvenile placement facilities, both secure and non-secure, would offer appropriate services for [S.P.W.], and all indicated preliminarily that they would not decline acceptance of [S.P.W.] with [an] extended juvenile jurisdiction designation.”

            The Minnesota Supreme Court has noted that

the EJJ statute’s overriding purpose is to require the prosecutor to demonstrate by clear and convincing evidence that designating a proceeding an EJJ prosecution will serve public safety.  The . . . factors provide guidance and must be applied but are not a rigid, mathematical equation.  Juvenile courts should have the discretion to weigh the factors in the context they are presented, and then decide whether EJJ designation is warranted according to the clear and convincing standard set forth in the EJJ statute.


D.M.D., 607 N.W.2d at 438.  The district court’s factual findings are supported by both the EJJ study and the psychological report.  The violent nature of the offense, S.P.W.’s history of offenses, their escalating nature, the psychological data indicating an emerging antisocial personality disorder, and S.P.W.’s extensive programming history support the district court’s determination that the state demonstrated by clear and convincing evidence that an EJJ designation will serve public safety.  The district court did not clearly err when it determined that an EJJ designation is warranted.


S.P.W. also argues that the district court should have given the psychological report little weight because (1) it was completed as an adult-certification study under Minn. R. Juv. Delinq. P. 18.04 rather than as an EJJ study under Minn. R. Juv. Delinq. P. 19.03, and (2) it did not address all the public-safety factors.  But as the district court observed, the psychological report addressed several of the EJJ public-safety factors.  See Minn. R. Juv. Delinq. P. 18.06, subd. 3 (requiring consideration of same public-safety factors for adult certification as for EJJ certification under Minn. R. Juv. Delinq. P. 19.05).  And the district court used this report to develop its findings related to S.P.W.’s treatment needs and potential for change.  This is a proper use of a psychological report, and there is no indication in the record that the district court gave the report undue consideration.