STATE OF MINNESOTA

IN COURT OF APPEALS

A03-949

In the Matter of the

Welfare of:  D.S.M.

Filed April 13, 2004

Affirmed
Klaphake, Judge

Hennepin County District Court

File No. J8-02-64657

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

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

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant D.S.M.)

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

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            D.S.M. appeals from the juvenile court’s designation of this case as an extended jurisdiction juvenile (EJJ) proceeding under Minn. Stat. § 260B.130, subd. 1(3) (2002).  He argues that the state failed to prove by clear and convincing evidence that EJJ designation will serve public safety.  Given the seriousness of the charged offenses, appellant’s high culpability, and the questionable adequacy of available programming within the juvenile justice time frame, we cannot conclude that the juvenile court’s decision was clearly erroneous.  We therefore affirm.

D E C I S I O N

            The state is required to show by clear and convincing evidence that EJJ prosecution will serve public safety.  Minn. Stat. § 260B.130, subds. 1(3), 2 (2002).  When considering EJJ designation, a juvenile court is directed to consider six public safety factors.  Id., subd. 2; .125, subd. 4 (2002).  On appeal, we review a juvenile court’s EJJ determination under a clearly erroneous standard.  In re Welfare of D.M.D., 607 N.W.2d 432, 437 (Minn. 2000) (citing In re Welfare of J.F.K., 316 N.W.2d 563, 564 (Minn. 1982)).

            Appellant was charged by petition with first- and second-degree criminal sexual conduct for incidents involving the seven-year-old son of his mother’s live-in boyfriend.  The incidents occurred during Christmas 2000 and the summer of 2001, while the seven-year-old was visiting his father.  At the time the petition was filed, appellant was 15 years old.

            The victim reported to police that appellant had touched his penis.  His story later expanded to allege that appellant had twice put his mouth on the boy’s penis and had twice penetrated him anally.  While appellant initially admitted both sexual contact and anal penetration, during at least one subsequent interview, he denied the allegations and claimed that he was “forced” into making an admission to police.

            In support of its motion to designate this as an EJJ proceeding, the state submitted two reports, an EJJ study prepared by juvenile probation officer Teri Trombley and a report by licensed psychologist Rebecca Reed.  Each report addressed the six public safety factors, but reached different conclusions.  Trombley recommended retaining appellant in the juvenile system and placing him at Mille Lacs Academy; Reed recommended EJJ designation with intake and treatment at a community based program, to be followed by a stay at Mille Lacs, if necessary.

            When weighing the six public safety factors, the juvenile court considered the information contained in the reports.  The court was not obligated to adopt or wholly accept the recommendation of either expert.  Cf. Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. 1991) (stating trial court did not abuse discretion by awarding custody contrary to recommendation of custody report, where record contained sufficient evidence to support court’s findings and decision).

            Seriousness of Offense

            The first public safety factor is “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.”  Minn. Stat. § 260B.125, subd. 4(1) (2002); see Minn. R. Juv. P. 19.05 (A).

            The juvenile court found this factor weighed heavily in favor of EJJ designation, noting that appellant “is charged with the serious offense of First Degree sexual contact and penetration with a much younger boy, which presents a grave concern in terms of community protection.”  The court further inferred that appellant was in a position of trust and authority with the victim, whom the court referred to as his “stepbrother,” a term used by Dr. Reed to characterize the victim, even though the victim was not directly related to appellant.  The court also noted that appellant knew that his actions were wrong because he told the victim not to tell anyone.  Finally, the court found that the victim “may suffer psychological effects for years to come” and that during a physical examination, the victim was found to have scarring around his anus.  This factor indisputably weighs in favor of EJJ designation.

            Culpability

            The second public safety factor is 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.”  Minn. Stat. § 260B.125, subd. 4(2); see Minn. R. Juv. P. 19.05(B).

            This factor also weighs heavily in favor of EJJ designation.  The juvenile court found appellant’s culpability to be “high,” noting that appellant was the sole participant charged with the crime, that the acts could not be considered consensual given the seven-year age difference between appellant and the victim, and that the relationship between appellant and the victim “makes it reasonable to infer that [appellant] manipulated this relationship in order to commit the sexual acts.”  The court further noted that appellant admitted to “having the victim sit on his lap while naked and permitting their penis[es] to touch,” and to “putting his penis in [the victim’s] anus.”  Finally, the court noted that the victim told police that appellant “had instructed him not to tell his father what had happened, indicating his awareness that wrongdoing had occurred.”

            Delinquency Record

            The third factor is the “child’s prior record of delinquency.”  Minn. Stat. § 260B.125, subd. 4(3); see Minn. R. Juv. P. 19.05(C).  The juvenile court here found that appellant has no prior record of delinquency, although he was charged with stealing items in 1997 and was routed into a diversion program.  The court also noted that appellant was suspended from school after bringing a pocketknife onto the premises.  Appellant may not have a prior record of delinquency, but the evidence suggests that he has engaged in some borderline or questionable behavior.  While this factor may not favor EJJ designation, it does not entirely negate such a designation.

            Programming History

            The fourth factor is the “child’s programming history, including the child’s past willingness to participate meaningfully in available programming.”  Minn. Stat. § 260B.125, subd. 4(4); see Minn. R. Juv. P. 19.05(D).  The court found that appellant has “consistently complied with prior psychiatric recommendations and has good compliance in efforts to control his ADHD.”  The court further found that appellant “completed his diversion programs through Peacemakers as a result of the 1997 thefts.”  The program required appellant to do chores with his grandfather and write a letter of apology to one of the victims.  Counseling was also part of the program, but appellant and his mother were unable to provide Dr. Reed with any specifics of that counseling.

            Adequacy of Available Programming & Available Dispositional Options

            The fifth and sixth factors are the “adequacy of the punishment or programming available in the juvenile justice system” and “dispositional options available for the child.”  Minn. Stat. § 260B.125, subd. 4(5), (6); see Minn. R. Juv. P. 19.05(E), (F).  The court found that although there are sex offender treatment options within the juvenile justice system, designation under “EJJ will double the length of jurisdiction over [appellant] providing more time for treatment and supervision.”  The court further found that the “only other disposition that is available is straight juvenile probation.”

            The juvenile court clearly considered the length of time available for monitoring and treatment as crucial to public safety in this case.  While the court’s findings could have been more specific in directing us to the information on which it relied in reaching this conclusion, we believe that the court’s decision is supported by information in the reports and the inferences that can be made from that information.

            In particular, Trombley’s report described a troubled and complicated family history that included “[d]epression, hyperactivity, violence, sexual inappropriateness, antisocial behavior, and alcoholism [as] present in various members of the family.”  Appellant’s mother has been married twice, and the family has lived with a number of different men with whom she has had relationships.  Appellant’s biological father, who left home when appellant was five years old, was “verbally abusive towards [appellant], but physical abuse was denied.”  One of the mother’s boyfriends was incarcerated for sexually abusing appellant’s sister when she was four years old; this man is also the father to appellant’s youngest sister.  Appellant has witnessed his mother being physically assaulted by two different men who have lived in the family home.  Appellant was exposed to pornography between the ages of nine and eleven when his mother’s second husband downloaded pornography on the computer in plain view of the children and when an adult male neighbor, who had a variety of pornographic materials around his house, babysat him.

            Dr. Reed’s report described appellant as “reticent about discussing his sexual history” and stated that he “denied being the victim of sexual abuse, though, as reported, his sister . . . was sexually molested by one of their mother’s former boyfriends.”  Appellant also denied any access to sexually explicit material, despite reports of his exposure to pornographic materials.  Of the two standardized personality tests administered by Dr. Reed, one could not be scored “as the validity indices indicated that the measure was completed randomly and/or inconsistently.”  Although the other test was not completed in a “fully reliable manner,” it was scored and suggested “several areas of concern, including poor frustration tolerance; low self-esteem; minimal (and unsatisfactory) peer relationship; moodiness; and possibly high conflict within his family.”  Dr. Reed concluded that as a result, appellant’s “compliance with therapeutic regimens may be tenuous . . . and he may require closer monitoring (more frequent contacts) in order to assure ongoing compliance with interventions.”  Dr. Reed recommended EJJ designation based in part on her belief that “he would benefit from the more intensive and longer-term monitoring available through [EJJ].”

            Weighing of Factors

            Minn. Stat. § 260B.125, subd. 4, provides that in “considering these [public safety] factors, the court shall give greater weight to the seriousness of the alleged offense and the child’s prior record of delinquency than to the other factors listed in this subdivision.”  The severity of the offense weighs heavily in favor of EJJ and the court here so found:  “In spite of the lack of a previous delinquency record, . . . [t]he seriousness of the offense, in combination with the created public safety concern and recommendation for longer term monitoring and treatment from psychological services[,] tips the scales towards [EJJ].” 

            Thus, given the seriousness of the offense and appellant’s high culpability, along with his troubled and complicated family history and his psychological makeup, we cannot conclude that the juvenile court clearly erred when it designated this as an EJJ proceeding.  The information presented and the inferences that can be drawn from that information provide clear and convincing evidence that designation of this matter as an EJJ proceeding will serve public safety. 

            Affirmed.