This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the
Welfare of: A.C.H., Child.
Filed May 29, 2007
Wright County District Court
File No. 86-JV-06-5284
John M. Stuart,
State Public Defender, Jane E. Rydholm, Special Assistant State Public
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.
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.
purposes of a certification hearing, the charges against the juvenile are
presumed true. In re Welfare of
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.
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
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.
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,
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.
1. Seriousness of Alleged Offense
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 (
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 (
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 (