This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of:

D.M.D., Jr.

Filed March 2, 1999

Reversed and remanded

Randall, Judge

Hennepin County District Court

File No. J2-98-051624

William E. McGee, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant D.M.D., Jr.)

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.



D.M.D., Jr. (D.M.D.) appeals the district court's order granting the prosecutor's motion to designate this matter as an Extended Jurisdiction Juvenile (EJJ) proceeding. D.M.D. is charged with two counts of criminal sexual conduct in the first degree. The district court found the prosecution showed by clear and convincing evidence that public safety would be served by granting EJJ designation because there was not sufficient time to treat and monitor D.M.D. before his 19th birthday. D.M.D. argues the prosecution did not show by clear and convincing evidence that designating this as an EJJ prosecution served public safety because the court failed to find nonoffense-related dangerousness. We reverse and remand for further findings of fact regarding nonoffense-related dangerousness.


On approximately March 18 or 19, 1997, and June 21, 1997, D.M.D. was babysitting three children including one female, eight-year-old C.S.W. C.S.W. reported that D.M.D. penetrated her digitally and with his penis. D.M.D. was 14 years old at the time of these alleged events.

On January 23, 1998, D.M.D. was charged with two counts of criminal sexual conduct in the first degree pursuant to Minn. Stat. § 609.342, subds. 1(a) and 2 (1996), Minn. Stat. § 609.101, subd. 2 (1996), and Minn. Stat. § 609.346, subd. 5 (1996). On February 26, 1998, the prosecutor filed a motion seeking EJJ designation. In preparation for the EJJ trial, the court ordered that an EJJ study and a psychological study be completed pursuant to Minn. R. Juv. P. 19.03, subd. 1. Doctors for the state testified that the extended time available under EJJ was necessary in order to successfully treat D.M.D. A psychologist who testified for D.M.D. concluded that he was capable of fully completing treatment prior to his 19th birthday.

The district court concluded that to insure the public safety, as well as to maximize the likelihood that D.M.D.'s programming will be successful, it was necessary for the court to exercise jurisdiction past D.M.D.'s 19th birthday. This appeal followed.


A juvenile court has discretion in determining whether to designate a proceeding an EJJ prosecution, and its decision will not be upset unless its findings are clearly erroneous as to constitute an abuse of discretion. In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). For the purpose of an EJJ hearing, the charges against the juvenile are presumed to be true. Id.

D.M.D. argues the prosecution failed to show by clear and convincing evidence that designating the proceeding as EJJ served public safety because the court failed to find nonoffense-related evidence of dangerousness. We agree. When a child is 14 at the time of an alleged felony offense, the prosecutor may move for an EJJ designation and a hearing must be held to designate the proceeding an EJJ. Minn. Stat. § 260.126, subds. 1(1) and 2 (1998). The EJJ designation insures that the juvenile, if convicted, will continue to be under the jurisdiction of the court until age 21. Minn. Stat. § 260.181, subd. 4 (b) (1998). For the court to designate the proceeding an EJJ, the prosecutor must show "by clear and convincing evidence that designating the proceeding an extended jurisdiction juvenile prosecution serves public safety." Minn. Stat. § 260.126, subd. 2. To determine whether public safety will be served, the court considers 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 (1998). When the court considers these factors, it must "give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to the other factors listed." Id.

The district court found the issue extremely close, but ultimately found that there should be EJJ designation. The court concluded: (1) the three factors of seriousness, culpability, and adequacy of punishment weighed in favor of EJJ; (2) the three factors of prior record of delinquency, programming history, and dispositional options weighed against EJJ (thus, in favor of straight juvenile jurisdiction). The court tipped the scale at seriousness due to the credibility of the state's witnesses and the vulnerability of the victim. See Minn. Stat. § 260.125, subd. 2b (indicating greater weight shall be given to seriousness). However, greater weight must also be given to D.M.D.'s prior record of delinquency, a factor that the court found favored juvenile jurisdiction, not EJJ. The court found D.M.D.'s record weighed against EJJ because it was minimal. See id. (indicating greater weight shall be given to prior record of delinquency). Importantly, the two most significant factors split fifty-fifty. The four lesser, but still important, factors split equally as well. The district court failed to examine the element of nonoffense-related dangerousness.

The state is required to present separate evidence of nonoffense-related dangerousness to show that EJJ designation serves public safety. S.W.N., 541 N.W.2d at 17.[1] In S.W.N., the juvenile had no prior record of delinquency and the prosecutor presented no evidence that the juvenile had engaged in any harmful conduct other than the charged offenses. Id. The S.W.N. court noted the requirement, but went on to find that the requirement of nonoffense-related dangerousness evidence had been met due to the juvenile's conduct disorder, lack of conscience and remorse, and the continuing influence of his father, who inspired S.W.N.'s charged offenses. Id. The court concluded the offense was a result of these emotional problems, and the risk to public safety resulted from these problems. Id.

Here, in contrast, the district court did not specifically address nonoffense-related dangerousness. Rather the court cited to specific character traits during its examination of the section 260.125 factors. The court pointed to D.M.D.'s denial of the offense, lack of remorse, conning and manipulative mannerism, and high risk to re-offend. However, unlike the facts in S.W.N., none of the witnesses reported that D.M.D. had other emotional problems. See S.W.N., 541 N.W.2d at 17 (citing evidence of diagnosed conduct disorder and explosive intermittent disorder); see also In re Welfare of C.L.S., 558 N.W.2d 12, 15-16 (Minn. App. 1997) (citing evidence of physical aggression and uncontrollable behavior when finding evidence of nonoffense-related dangerousness).

None of the traits discussed by the district court provide similar evidence of nonoffense-related dangerous behavior. In short, the record does not contain enough material to supply the element. On these facts, and with the controlling factors split so evenly, the district court erred in finding EJJ designation without evidence of nonoffense-related dangerousness. We reverse and remand for further findings of fact.

Reversed and remanded.

[1] This court has questioned whether evidence of nonoffense-related dangerousness is necessary in adult certification cases, but adult certification, although having some parallel, is not EJJ. In re Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).