This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In the Matter of the Welfare of: C.A.L.
Motion granted in part and denied in part
Hennepin County District Court
File No. 27JV0612876
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.
Appellant challenges the district court’s designation of the proceeding against him in juvenile court as an extended jurisdiction juvenile proceeding (EJJ) in the context of denying the state’s motion to certify appellant as an adult. Appellant argues that the district court (1) violated his right to due process by failing to order a new psychological evaluation and a new certification study to remedy the original evaluators’ exposure to irrelevant information; (2) erred by considering certification and EJJ designation simultaneously; (3) made clearly erroneous findings; and (4) committed reversible error by designating the proceedings EJJ. We affirm.
At about 3 a.m. on August 28, 2006,
J.H. told police that she had been asleep in a bedroom when she woke up to find C.A.L. lying in bed next to her, with his hand in her pajama shorts, fondling her buttocks. When she screamed for help, C.A.L. climbed on top of her and tried to put a pillow over her face. When she continued to scream, he fled. A kitchen knife, which did not belong to the household, was found on the floor by J.H.’s bed. J.H.’s two-year-old daughter was in a crib in the room where the assault occurred.
C.A.L. turned 14 years old several
days prior to the incident. C.A.L. has
no prior involvement with juvenile court and no programming history. C.A.L. and his grandparents, refugees from
When C.A.L. was taken to the
A delinquency petition was filed, alleging that C.A.L. committed three counts of first-degree burglary and one count of fourth-degree criminal sexual conduct. The prosecutor moved for non-presumptive certification of C.A.L. as an adult. The district court ordered a certification study, which was performed by juvenile probation officer Charles Upham, and a psychological evaluation, which was performed by psychologist Dr. Dawn Peuschold. C.A.L. retained Dr. James Gilbertson to perform a psychological evaluation.
After the certification study and Dr. Peuschold’s psychological evaluation reports were complete, C.A.L. moved to redact from the reports all references to three offenses with which C.A.L. had not been charged. The district court granted C.A.L.’s motion to redact all references to these incidents from the reports, but denied his motion to appoint a different probation officer and psychologist, who had not had access to the redacted information, to conduct a new certification study and psychological evaluation.
Upham, Dr. Peuschold, and Dr. Gilbertson testified at the certification hearing. None of the witnesses recommended certification as an adult, but Upham and Dr. Peuschold recommended EJJ designation. Dr. Gilbertson testified that treatment and public safety needs could be met by retaining the matter in juvenile court. The district court denied the state’s motion for certification, but designated the proceeding as EJJ. This appeal follows.
I. Due process arguments
argues that his due process right to fundamental fairness was violated by (1)
the district court’s failure to ensure that the opinions of the court-appointed
examiners were not biased by examination of improper materials and (2) the
acceptance by the examiners and the district court as true allegations that
were not included in the probable cause statement of the petition. Allegations of constitutional violations are
reviewed de novo on appeal. In re Welfare of J.C.P., Jr., 716 N.W.2d
664, 666 (
The rules of juvenile procedure provide
that, in a certification proceeding, the district court “may order social,
psychiatric, or psychological studies concerning the child . . . .”
If the person preparing the report includes a recommendation on the court’s actions: (a) the report “shall address each of the public safety considerations of Rule 18.06, subdivision 3; and (b) the report shall address all options of the trial court under Rule 18.07, namely; (i) certification; (ii) retention of jurisdiction for [EJJ] proceedings; and (iii) retention of juvenile court jurisdiction in non-presumptive certification cases.”
a. Police reports of other incidents
Both Upham and Dr. Peuschold had access to police reports of three prior burglaries that occurred in the same apartment complex within one month of the incident described in the petition. C.A.L was not mentioned in connection with two of the burglaries. He was investigated but not charged for one of the burglaries. C.A.L. argues that Upham’s and Dr. Peuschold’s recommendations were influenced by this irrelevant information. The district court reasoned that the issue of the prior incidents could be addressed through cross-examination of these witnesses and by redacting any mention of the uncharged incidents in their reports.
At the certification hearing, Upham, whose assessment of C.A.L.’s risk to public safety was based primarily on Upham’s assessment of the seriousness of the offense, was asked specifically if his opinion on the seriousness of the offense would change in any way if he could not consider redacted reports. He replied, “Absolutely not.” Dr. Peuschold testified that she had formed her opinion on EJJ designation before she reviewed the police reports. On the record before us, we conclude that denial of the motion for new examiners and new reports was not an abuse of discretion and did not make the proceedings fundamentally unfair such that C.A.L. was deprived of his due process rights.
b. Statements by C.A.L.’s father
Upham’s report contained statements by C.A.L’s father and C.A.L.’s school counselor. The school counselor said that C.A.L. is a good student and athlete and is well-behaved at school. C.A.L. had some truancy issues and two suspensions from school for insubordination and threatening another student, but no ongoing issues according to the counselor. C.A.L.’s father, however, told Upham that once C.A.L. began to associate with peers from his junior-high football team, his behavior in the home and in the community was out of control. Father told Upham that C.A.L had stolen money, credit cards, and his stepmother’s car. He said that C.A.L. sneaked out of the house at night and would go “on run” for days at a time. He had ordered Internet service without permission and possessed pornography. After C.A.L. took his stepmother’s car for six days in June 2006, father arranged for C.A.L. to live with father’s sister.
C.A.L. argues that Dr. Peuschold was improperly influenced by his father’s statements contained in Upham’s report. But Dr. Peuschold testified that she did not see Upham’s report until after she had completed and filed her report. At the hearing, based on the information from C.A.L.’s father, she changed her opinion from not giving C.A.L. a diagnosis to diagnosing him with a conduct disorder, but her opinion concerning EJJ designation was formed without regard to father’s statements. Nothing in the rules prohibits a psychologist from relying on a parent’s statements in connection with a psychological evaluation. We conclude that C.A.L.’s argument that Dr. Peuschold improperly used father’s statements is without merit.
c. Information not contained in petition
Appellant also argues that the
examiners and district court erred by considering information not contained in
the probable cause portion of the delinquency petition. C.A.L concedes that in certification and EJJ
hearings the judicial determination of probable cause creates a presumption
that the charges contained in the petition are true. See In
re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995) (indicating that
a juvenile can be presumed guilty of the alleged offenses), review denied (Minn. Feb. 9, 1995), overruled on other grounds by In re Welfare
of D.M.D., Jr., 607 N.W.2d 432 (
The district court stated its decision on the record and also issued detailed written findings of fact, conclusions of law, and an order. On the record, and in its written findings, the district court noted that Dr. Gilbertson “did not take into account that a child was present during the offense, that the child observed the sexual offense.” In discussing the planning involved in the offense, the district court also stated on the record that C.A.L had talked to the victim prior to the time of the burglary. C.A.L. correctly asserts that neither the probable cause portion of the petition nor the record contain any reference to J.H.’s child having witnessed anything or C.A.L. having spoken to J.H. at any time. C.A.L. asserts, without elaboration, that the district court’s reliance on these clearly erroneous facts constitutes reversible error. We disagree.
Whether or not the child witnessed the assault, the district court’s point that Dr. Gilbertson failed to take into account the presence of a young child in the room was a valid consideration in assessing Dr. Gilbertson’s testimony. And the probable cause portion of the petition supports a reasonable inference that C.A.L. had watched J.H. for a sufficient time to determine where she lived and to form an opinion that she lived alone. Whether C.A.L. spoke to J.H. prior to the burglary does not significantly affect the district court’s crediting Dr. Peuschold’s testimony that C.A.L. demonstrated a degree of planning not typical in juvenile offenses. C.A.L. has failed to show that these factual errors had any effect on the outcome of this matter, and we conclude that these errors are harmless.
II. Consideration of certification and EJJ in same proceeding
C.A.L. argues that by simultaneously considering certification, EJJ, and retaining the matter as only a juvenile-court case, the district court “mixed up the several questions it had to decide, rather than approaching each of them separately.” C.A.L. argues that because the “prosecutor went for broke” by seeking certification, the district court was precluded from considering EJJ simultaneously with certification. We find no merit in this argument.
“Designation as EJJ may only occur
if the prosecuting attorney has shown by clear and convincing evidence that the
designation would serve public safety, taking into account the factors
specified in Rule 18.06, subdivision 3.”
In determining whether public safety is served by designating a proceeding as EJJ, the district court must consider the following six factors:
(1) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;
(2) 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 sentencing guidelines;
(3) the child’s prior record of delinquency;
(4) the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;
(5) the adequacy of the punishment or programming available in the juvenile justice system; and
(6) the dispositional options available for the child.
C.A.L. argues that the district court impermissibly mixed the analyses of certification and EJJ designation by treating them together with the same factual findings. But the district court separately considered each factor and whether it weighed in favor of adult certification, EJJ, or straight juvenile disposition. Plainly, the district court adequately considered each designation in light of each factor.
III. Sufficiency of evidence
C.A.L. asserts that if there was insufficient evidence that the six public-safety factors support certification, the same factors could not support an EJJ designation. But, C.A.L. acknowledges that for certification, the prosecutor must show that retaining the proceeding in juvenile court is contrary to public safety, while in an EJJ designation, the prosecutor must show that an EJJ designation serves public safety. Therefore, because the standards are different, a district court may decline to order certification, but, on the same evidence, designate a proceeding EJJ.
In this case, the district court concluded that the prosecution proved, by clear and convincing evidence, that public safety is served by designating the proceeding EJJ based on the seriousness of the offense, evidence that a stayed adult sentence will function as an effective deterrent to C.A.L.’s future involvement in criminal activity, and evidence that additional probation time will give C.A.L. time to establish more stable relationships and a network that will help him remain law-abiding.
An appellate court reviews under a clearly erroneous standard whether the state proved by clear and convincing evidence that public safety would be served by designating a prosecution EJJ. In re Welfare of D.M.D., Jr., 607 N.W.2d at 437. Appellant argues that the district court’s findings designating appellant EJJ are clearly erroneous. We disagree.
“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.”
The court is required to take into
account “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.”
In this case, the district court found that “this offense is extremely serious and . . . this factor weighs in favor of EJJ designation.” All three experts testified that the offense is serious. Dr. Peuschold opined that appellant’s offense is “extremely serious.” Upham and Dr. Gilbertson characterized the offense as “very serious.” Dr. Gilbertson testified that the offense “was the kind of offense that can cause severe psychological trauma and impact upon the victim” because the assault was a surprise, the victim was sleeping, and the victim was restrained when C.A.L. placed a pillow around her head to silence her screaming.
C.A.L. argues that the findings on the seriousness of the offense are clearly erroneous because they were improperly based on allegations in the redacted police reports and facts that were not part of the probable-cause portion of the delinquency petition. But the record demonstrates that Upham’s and Dr. Peuschold’s opinions were not based on the challenged police reports and, as discussed above, the minor factual errors were not prejudicial. C.A.L. also argues that the record does not support a finding that he planned the sexual assault. But C.A.L.’s choosing an apartment in which he believed that a young, female victim lived alone, supports such a finding.
C.A.L. also maintains that the aggravating factors cited as making the offense particularly serious refer to the sexual assault charge, rather than the burglary charges, but, he argues, burglary is the only offense that could support the non-presumptive certification motion because fourth-degree criminal sexual conduct is a presumptive probationary offense. Count 1 of the petition charges C.A.L. with violating Minn. Stat. § 609.582, subd. 1(c), by entering “a building, without consent and with intent to commit a crime or committed a crime, while in the building and sexually [assaulting] JH, a person within the building.” This is the most serious charge against C.A.L and carries a presumptive executed sentence of 48 months. The presence of a child in the room where the assault occurred and C.A.L.’s targeting the victim in the middle of the night goes to the aggravating factor of the victim’s vulnerability. See, e.g., Dalsen, 444 N.W.2d at 584 (stating that presence of a child is an aggravating factor); see also State v. Bock, 490 N.W.2d 116, 121-22 (Minn. App. 1992) (holding that planning of attack when victim was alone in middle of night was properly considered aggravating factor), review denied (Minn. Aug. 27, 1992). We find no merit in C.A.L.’s argument that the district court considered the seriousness of his offense only in terms of the charge of fourth-degree criminal sexual conduct contained in count 4 of the petition.
C.A.L. argues that the district court erred by not crediting the testimony of Dr. Gilbertson rather than the testimony of Dr. Peuschold. Dr. Gilbertson stated that Dr. Peuschold improperly evaluated C.A.L.’s behavior using an instrument that addresses assaultive or violent risk, rather than an instrument that specifically addresses sexual-offense recidivism. But because both sexual assault and burglaries were involved, the district court was not clearly erroneous in crediting Dr. Peuschold’s testimony over Dr. Gilbertson’s, concerning a prediction of C.A.L.’s future risk for assaultive or violent behavior. See In re Welfare of D.M.D., Jr., 607 N.W.2d at 438 (holding that district court did not err in crediting testimony of state’s experts over that of child’s expert). Dr. Peuschold testified at length and in detail about the assessment tools she used and the basis of her opinion that C.A.L. presents a risk to public safety best addressed in an EJJ proceeding. Dr. Peuschold discussed studies showing that juvenile sex offenders rarely have adult victims, and the fact that C.A.L.’s choice of an adult female victim makes the pool of potential victims much larger than for juveniles who may sexually offend against younger siblings. The larger pool of potential victims, in turn, creates a greater risk to public safety. We conclude that the district court did not clearly err by determining that the seriousness of the offenses weighed in favor of EJJ designation.
b. Culpability of the child in committing the alleged offense
The district court found that “all three witnesses agree that [C.A.L.] is culpable for the alleged offenses. There is no evidence that [he] was enticed, deceived, manipulated, or coerced to engage in the alleged behaviors. He appears to have acted alone.” Dr. Peuschold and Upham both opined that C.A.L. was fully culpable for the offenses. Gilbertson testified that C.A.L.’s alleged act of entering the apartment when he knew that someone was probably in the apartment was a “higher risk event,” and the allegation that appellant carried a knife into the apartment showed a further increased level of risk taking.
C.A.L. argues that his age and
amenability to probation are factors that make him less culpable in committing
the alleged offenses. See
c. Prior record of delinquency and programming history
is the second factor that is required to be given greater weight. See Minn.
Stat. § 260B.125, subd. 4;
d. Adequacy of punishment or programming options available in the juvenile justice system
All three experts testified that the juvenile justice system has adequate programming available that is appropriate for C.A.L., but they differed in their opinions of the amount of time required to restore C.A.L. to law-abiding behavior. The district court found that “[a]n EJJ designation would act as a public safety net in the event that [appellant] is unable or unwilling to comply with Court orders” and that the availability of programming and the adequacy of punishment weighed in favor of EJJ designation.
Upham recommended the
Dr. Peuschold agreed that nothing in the record indicates that C.A.L. cannot complete treatment before his 19th birthday, but cited the risk factors she found present in C.A.L.’s circumstances that led her to opine that a period of supervision that is longer and more intensive than supervision available in the juvenile system would be more likely to allow C.A.L. to return to pro-social behavior. She also testified that because C.A.L. is bright and not as impulsive as most juveniles in the juvenile justice system, the possibility of an adult sanction should he not succeed in the juvenile system will be a meaningful deterrent to reoffending.
Dr. Gilbertson opined that standard juvenile jurisdiction offers programming options for C.A.L. that are consistent with public safety. He testified that the 57 months until C.A.L.’s 19th birthday are sufficient for him to complete a treatment program, including residential treatment, followed by structured community placement, followed by standard probationary supervision.
The district court referred only to “consideration
of both the availability of programming and the adequacy of punishment” to
conclude that this factor weighed in favor of EJJ designation. The district court’s finding is consistent
with the legislative intent of the EJJ statute: “[T]o 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.” State v. Garcia, 683 N.W.2d 294, 300 (
e. Available dispositional options
The record shows that treatment programming for C.A.L. will be the same whether he is retained in the juvenile justice system or the proceeding is designated EJJ. But there is also evidence in the record that, should treatment fail, an appropriate disposition would be incarceration, a disposition not available in the juvenile system. The district court credited Dr. Peuschold’s testimony that, based on appellant’s intellect, a stayed adult sentence would effectively function as a deterrent. The district court also credited Upham’s testimony that additional probation supervision time under EJJ would help appellant remain law-abiding. See In re Welfare of D.M.D., Jr., 607 N.W.2d at 438 (holding that district court did not clearly err “in finding the testimony of the state’s experts to be more credible than that of [the child’s], and in determining that without an EJJ designation, there would be insufficient time to treat [the child]”). The district court’s finding that this factor weighs in favor of EJJ designation is not clearly erroneous.
The district court’s findings reflect that it weighed all of the required statutory factors in making an EJJ designation. The court gave the most weight to the seriousness of the offense, which is one of the two factors that it is required to weigh more heavily. But the district court did not rely exclusively on the seriousness of the offense to determine that EJJ designation is appropriate. See, e.g., In re Welfare of L.M., 719 N.W.2d 708, 712 (Minn. App. 2006) (stating, in the context of a certification case, that although the seriousness of the offense is to be given more weight, it is not enough by itself to require certification). The record is sufficient to support the district court’s findings and conclusion that the matter be designated EJJ.
IV. Motion to strike
has moved this court to strike (1) statements in respondent’s brief that refer
to information that was redacted from the record and (2) the appendix to
respondent’s brief, which contains a copy of the state’s brief before the
Minnesota Supreme Court in In re D.M.D.,
Jr., 607 N.W.2d 432. The record on
appeal consists of “[t]he papers filed in the trial court, the exhibits, and
the transcript of the proceedings.”
Affirmed; motion granted in part and denied in part.
 The EJJ statute provides for extended jurisdiction in
cases in which a juvenile is alleged to have committed a felony.
If a child is 14 or 15 years old, there is no presumption of adult
certification. Minn. Stat.
§ 260B.125, subd. 3 (2006). Absent
that presumption, the district court may order certification only if the
prosecutor has proved “by clear and convincing evidence that retaining the
proceeding in juvenile court does not serve public safety.”