Matter of the
April 13, 2004
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
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
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).
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.
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.”
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.
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].”
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.