may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
D.E.F., a minor child.
Filed August 25, 1998
Kanabec County District Court
File No. J4-97-50168
Stephen W. Shaughnessy, Shaughnessy, Warren & Shaughnessy, 450 Sheehan Corporate Center, 4500 Park Glen Road, Minneapolis, MN 55416 (for appellant D.E.F.)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Norman J. Loren, Kanabec County Attorney, Lisa B. Jones, Assistant Kanabec County Attorney, 19 North Vine Street, Mora, MN 55051 (for respondent State of Minnesota)
Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.
Appellant challenges the district court's designation of his case as an extended juvenile jurisdiction (EJJ) matter. We affirm.
The delinquency petition was filed on July 24, 1997, alleging that D.E.F. committed first-degree criminal sexual conduct. The state filed a motion for extended juvenile jurisdiction (EJJ), and the district court designated this case an EJJ matter. D.E.F. now appeals.
Before designating a proceeding an EJJ, the state must prove by clear and convincing evidence that this designation serves the public safety. Minn. Stat. § 260.126, subd. 2 (1996). To determine whether public safety is served, the district court must consider the following 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.
Minn. Stat. §§ 260.125, subd. 2b (1996), 260.126, subd. 2. The district court shall place greater weight on the seriousness of the alleged offense and the prior delinquency record factors. Minn. Stat. § 260.125, subd. 2b. Further, the state must introduce "non-offense related evidence of dangerousness to show that an EJJ designation serves public safety." S.W.N., 541 N.W.2d at 17. But cf. In re Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997) (questioning whether statute requires prosecution to introduce separate non-offense-related evidence of dangerousness in adult certification case), review denied (Minn. Feb. 19, 1998).
Seriousness of the Alleged Offense
D.E.F. concedes that the district court's findings regarding the seriousness of the offense are not clearly erroneous. D.E.F. argues, however, that Todd Eustice, the probation officer, improperly applied the aggravating factors. Eustice noted in his report to the district court that a knife was involved and that the offense required planning. D.E.F. insists that he did not engage in "long-range planning" and asserts that the sentencing guidelines require that the planning must be "long-range" in order to constitute an aggravating factor. He also asserts that because he was charged with first-degree criminal sexual conduct, use of force or a weapon is inherent.
Despite D.E.F.'s arguments, and regardless of Eustice's report, the district court specifically concluded that none of the aggravating factors under the sentencing guidelines applied in this case. The district court found that this was an extremely serious offense and noted the impact on the victim (A.F.J. reported that she cannot sleep, has trouble eating, is afraid to travel at night, has purchased a handgun, and is seeing a psychologist). Culpability
D.E.F. insists that the record indicates that he has a mental impairment that should have been recognized as a mitigating circumstance. Under the sentencing guidelines, one mitigating factor is whether "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed." Minn. Sent. Guidelines II.D.2.a.(3). D.E.F. notes that his IQ is 80, he has been attending special schools, he has abstract reasoning shortcomings, and he has been diagnosed as having a learning disability. He also insists that Dr. Roger Carten, the court-appointed psychologist, reported that D.E.F.'s ability to complete treatment may be affected by his intelligence limitations.
The district court determined that D.E.F. premeditated the offense and planned and committed the offense on his own. The court noted that he visited the house prior to the attack and he was not wearing socks or underwear when he committed the assault. The court did not recognize a mental impairment as a mitigating factor here.
As the court pointed out, Dr. Carten specifically testified that D.E.F. does not have a mental impairment. Dr. Carten stated that because D.E.F.'s IQ is not below 70, he could not be diagnosed as mentally impaired. Dr. Carten concluded that D.E.F. has an "adjustment disorder with disturbance of conduct." Dr. Carten also testified that D.E.F. does not lack capacity, but does lack judgment. He stated that D.E.F. does "have the capacity to know right from wrong" but at certain times "the rational part of the brain that the rest of us would have clicks off."
Prior Delinquency Record
According to the record, D.E.F. admitted to a fifth-degree assault charge in August 1997, but at the time of the EJJ hearing no disposition had been ordered in that case. The district court also noted that D.E.F. has four pending petitions for disorderly conduct. Finally, D.E.F. previously admitted to being habitually truant.
D.E.F.'s programming history is minimal. The district court found that his only programming or treatment was family counseling in 1994, "during which he showed no willingness to participate meaningfully." There is also evidence that D.E.F. was placed at Rum River South day school in February 1996. Evidence indicates he had behavior problems at Rum River and was truant from that school. D.E.F. successfully completed a three-week Wilderness Endeavors Program for truancy in summer 1997 and successfully participated in an employment program and vocational assessment with Industries Incorporated in summer 1997.
Adequacy of Available Punishment or Programming/Dispositional Options
The district court noted that at the time of its order there would be three years, seven months for D.E.F. to be treated in the juvenile system, while there would five years, seven months available for treatment if the case was designated an EJJ. The court noted Dr. Carten's statements that sex-offender treatment could take two to two-and-a-half years and that offenders benefit from "long periods of post-treatment supervision." The court determined that although there are a variety of treatment, educational counseling, and consequence options available for D.E.F., sex-offender treatment is his most important programming need.
Eustice and Dr. Carten both testified that there are adequate sex-offender programs available in the juvenile system. Eustice testified that he was unsure whether D.E.F. would be successful in one of these programs. Dr. Carten testified that there would be adequate time to treat D.E.F. in one of these programs. Dr. Carten noted in his report, however, that D.E.F.'s "limitations produce a significant probability that he may fail treatment." He testified that although the average length of sex offender treatment is 15 to 18 months, the treatment program could take D.E.F. up to a year longer. If the program took D.E.F. two-and-a-half years, Dr. Carten testified, there would be limited time for D.E.F. to be on probation afterwards and little time to test whether the treatment was effective. Dr. Carten also testified that the possibility of an adult sentence may serve to motivate D.E.F. for treatment.
Non-Offense Related Dangerousness
The district court did not make any specific finding about whether there is non-offense-related evidence that D.E.F is dangerous. See S.W.N., 541 N.W.2d at 17 (holding state must introduce non-offense-related evidence of dangerousness in EJJ proceedings). The district court did find that D.E.F. has admitted to fifth-degree assault stemming from a separate petition. Further, the record indicates four petitions for disorderly conduct have been filed against D.E.F. According to testimony from Eustice, there is evidence in D.E.F.'s school records that D.E.F. has been accused of pinching and grabbing female students and accused of pushing one of those female students down some steps. There is also evidence that D.E.F. cut off his electronic monitoring bracket, and hearsay evidence was introduced through Eustice that after being taken into custody following a hearing, D.E.F. told the escorting officer in reference to the victim, A.F.J., that "[s]he'll get hers" and "[s]he'll get what coming to her for putting me in here."
D.E.F. insists that the fifth-degree assault does not demonstrate dangerousness. He also argues that evidence of his past behavior contained in his school records should be inadmissible because the records are not reliable. D.E.F. points to In re Welfare of L.Z., 396 N.W.2d 214, 221 (Minn. 1986), where the supreme court determined that school attendance records are admissible to prove absences in truancy cases but judgments about those absences contained in the records are not admissible. D.E.F. insists that the records here are not based on first-hand observation and are made by students rather than school personnel. He asserts that the reports are at least second- or third-hand hearsay and that when Eustice testified regarding these incidences, the evidence was four or five levels from the original declarant.
Here, unlike in L.Z., the district court is not determining guilt. Cf. In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993) (noting juvenile reference hearing is not trial to adjudicate guilt or innocence), review denied (Minn. Jan. 14, 1994). Hearsay rules are not to be strictly applied to exclude police records from juvenile reference (certification) hearings. In re Welfare of T.L.J., 495 N.W.2d 237, 240 (Minn. App. 1993). Similarly, in EJJ hearings, the district court may receive any relevant information, with the exception of privileged communications, including reliable hearsay and opinions. Minn. R. Juv. Pro. 19.04, subd. 3(B). Although evidence in school records may not be as reliable as police records, evidence from school records has been introduced in other juvenile cases. See D.T.H., 572 N.W.2d at 743 (noting court psychologist relied on school records showing juvenile had been involved in fighting incidents); cf. Kimmel v. Kimmel, 392 N.W.2d 904, 909 (Minn. App. 1986) (relying in part on school records in affirming custody decision), review denied (Minn. Oct. 29, 1986). The evidence may be relevant for an EJJ hearing; the district court did not err by admitting testimony regarding these records.
D.E.F. points to Dr. Carten's testimony and asserts that his testimony indicates that D.E.F. is not dangerous. Dr. Carten testified in relevant part:
I see him as also kind of what I describe as somewhat impulsive kid who when he gets frustrated, he gets angry. And when he gets angry he then, in the point of frustration, doesn't give a lot of thought to what he's going to do next and then cuts off, you know, his brain essentially. Then just go ahead and do it. Or cut out the thought process, not his brain.
* * * *
He's definitely not a criminal kid and he doesn't have a real criminal history * * *.
* * * *
I mean, that's the lack of really predatory quality to [D.E.F.]. That's an absence of -- The predator goes and essentially thinks that the rules and regulations don't apply, and to hell with the feelings of anyone else. I'm going to do this and it's going to be done now. This didn't quite fit that pattern.
* * * *
* * * [M]y concern would be is that he would simply, once he feels constraint - and you'd have to look to the social history for more information to verify that - but if he's under constraint and he gets frustrated, my prediction would be he'd act out. And therefore, that would present some sort of a risk to the community.
But as a predator going around attacking people out of a premeditated desire to attack people, I don't think so.
The state insists that this case is similar to S.W.N., 541 N.W.2d at 17, where this court determined that S.W.N.'s conduct disorder and explosive intermittent disorder, along with the offense that was a manifestation of those disorders, were sufficient evidence of non-offense-related dangerousness. The state notes that D.E.F. has been diagnosed as having an "adjustment disorder with disturbance of conduct." The state insists that this offense was a manifestation of that disorder and the fact that D.E.F. broke his electronic monitoring bracelet was also a manifestation.
Based on the record, the district court did not make clearly erroneous findings in this case. On the one hand, D.E.F.'s prior delinquency record and programming history do not support EJJ. On the other hand, there is no question that the seriousness of the offense also weighs in favor of EJJ. D.E.F.'s culpability in the alleged offense weighs in favor of EJJ. The testimony of Dr. Carten indicates that available programming and available disposition options weigh in favor of EJJ because of the length of time it might take D.E.F. to complete sex-offender treatment. Based on D.E.F.'s assault admission, the evidence of his past behavior contained in his school records, and Dr. Carten's testimony, there is sufficient (not overly so, but sufficient) non-offense evidence that D.E.F. is a danger to public safety. The district court did not abuse its discretion by designating this case an EJJ matter.
 We specifically reject determining the appropriateness of an EJJ designation by considering whether a stayed adult sentence may serve to "motivate a juvenile." However, Dr. Carten's other reasoning properly supports his recommendation that this case be designated an EJJ.