In the Matter of the Welfare of: T. D. B., Child

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0813

In the Matter of the Welfare of: T. D. B., Child

Filed November 27, 2017
Affirmed
Larkin, Judge

Steele County District Court
File No. 74-JV-16-1863

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant T.D.B.)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Daniel McIntosh, Steele County Attorney, Laura E. Isenor, Assistant County Attorney,
Owatonna, Minnesota (for respondent State of Minnesota)

Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.

U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s order certifying his two third -degree
criminal-sexual-conduct charges for adult prosecution under Minn. Stat. § 260B.125
(2016). He argues that because he is a low -risk juvenile with no prior delinquency or
2
programming history, the district court abused its discretion by ordering certification. We
affirm.
FACTS
On September 9, 2016, respondent State of Minnesota filed a juvenile delinquency
petition charging appellant T.D.B., born September 25, 1997 , with two counts of third -
degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(b) (201 4). The
complaint alleges that when T.D.B. was 17 years old, he sexually penetrated his cousin ,
T.R., on two occasions in July and August 2015. T.R. was 14 years old at the time of the
alleged offenses. T.R. described her relationship with T.D.B. as closer than cousins, more
like a sibling relationship.
The first alleged assault occurred in a remote area, in a vehicle driven by T.D.B. ,
off of a gravel road , far from any houses. T.R. alleges that T.D.B. undressed her and
penetrated her with his fingers and penis. T.R. reported that she was in shock and unable
to move, and that the car doors were locked. The second alleged assault occurred after
T.R. reached out to talk to T.D.B. about what had happened. T.D.B. picked up T.R. and
drove to a parking lot. T.R. suggested that they go to the home of one of T.D.B.’s parents.
Instead of complying, T.D.B. drove T.R. to a remote area and again penetrated T.R. with
his penis after she tried to resist. T.D.B. admitted to T.R.’s mother that he had sexual
intercourse with T.R. on two occasions.
On September 21, 2016, t he state moved to certify the proceeding for prosecution
under the laws and court procedures cont rolling adult criminal violations . On April 25,
2017, th e district court held a hearing on the certification motion. At the time of the
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hearing, T.D.B. was over 19 years old. The state called one witness, Dr. Gary Hertog. The
defense did not call any witnesses, but it submitted a psychosexual assessment prepared by
Marie Grace, MA, LMFT.
Dr. Hertog has a master’s degree in counseling psychology and a doctorate in
clinical psychology. He was the director of the juvenile sex -offender program at MCF -
Red Wing for seven years. He has been conducting sex-offender evaluations for 18 years,
and he has been treati ng sex offenders for 23 years. He is als o a licensed psychologist.
Dr. Hertog testified that certification was appropriate because T.D.B. would not receive
supervision adequate to ensure public safety without it. Dr. Hertog based his
recommendation for certification, in part, on T.D.B.’s need for targeted treatment. He
opined that a treatment program focused on appropriate sexual boundaries would not be
adequate to address T.D.B.’s needs if T.D.B. had committed the penetration offenses ,
because such programming would not address the cognitive disorders that allowed T.D.B.
to commit the offenses.
Grace is a partner in Skipped Parts LLC, an agency that provides assessment and
clinical services for individuals “who have committed sexual offenses or engage d in
harmful or problematic sexual behaviors.” Grace has a master -of-arts degree in marriage
and family therapy and is a licensed marriage and family therapist. She has worked with
sex offenders for over three years.
Grace recommended that T.D.B. complete a 20 -week program addressing
appropriate boundaries and a full-day “Healthy Sexuality Workshop” offered by Skipped
Parts LLC. Grace’s assessment did not indicate whether one -on-one therapy would be
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appropriate for T.D.B. or whether supervision after treatment would be beneficial to ensure
that T.D.B. implements skills gained in tr eatment. Grace did not render an opinion
regarding the timeframe necessary for T.D.B. to successfully complete treatment or
whether the proceeding should be certified. The district court noted that if “Grace did any
testing with regard to assessing [T.D. B.’s] risk to reoffend sexually, that information wa s
not included in her report.”
On April 26, 2017, the district court certified the proceeding for adult prosecution.
T.D.B. appeals.
D E C I S I O N
“When a child is alleged to have committed, after becoming 14 years of age, an
offense that would be a felony if committed by an adult, the [district] court may enter an
order certifying the proceeding for action under the laws and court procedures controlli ng
adult criminal violations. ” Minn. Stat. § 260B.125 , subd. 1. A presumption in favor of
certification exists when “the child was 16 or 17 years old at the time of the offense” and
“the delinquency petition alleges that the child committed an offense that would result in a
presumptive commitment to prison under the sentencing guidelines and applicable statutes,
or that the child committed any felony offense while using, whether by brandishing,
displaying, threatening with, or otherwise employing, a firearm.” Minn. Stat. § 260B.125,
subd. 3.
The underlying charges are severity level D offenses, and the presumptive sentence
for each offense is a stayed 36-month prison senten ce under the Minnesota Sentencing
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Guidelines. Minn. Sent. Guidelines 4.B (Supp. 2015); Minn. Sent. Guidelines 4.B (2014).1
The state does not allege that T.D.B. used a firearm during either offense. Thus, the
presumption of certification does not apply, and the district court could order certification
only if the state proved “by clear and convincing evidence that retaining the proceeding in
the juvenile court does not serve public safety.” Minn. Stat. § 260B.125, subd. 2(6)(ii).
In determining whether public safety is served, courts must consider
(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, i ncluding 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 programmi ng 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. § 260B.125, subd. 4. In considering these 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. Id.
If the prosecution fails to demonstrate that public safety is best served by
certification, the district court may designate the proceeding an extended jurisdiction

1 Given the offense dates, each offense is governed by a different version of the sentencing
guidelines.
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juvenile (EJJ) prosecution. Minn. Stat. § 260B.130, subd. 1(1) (2016). Although a juvenile
court’s jurisdiction over a delinquent child normally terminates when the individual
becomes 19, “the jurisdiction of the court over an [EJJ] . . . extends until the offender
becomes 21 years of age.” Minn. Stat. § 260B.193, subd. 5 (2016). If an EJJ prosecution
results in a guilty plea or finding of guilt, the district court “shall impose one or more
juvenile dispositions . . . and impose an adult criminal sentence, the execution of which
shall be stayed on the condition that the offender not violate the provisions of the
disposition order and not commit a new offense.” Minn. Stat. § 260B.130, subd. 4 (2016).
A district court has considerable latitude in deciding whether to certif y a case for
adult prosecution. In re Welfare of S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007), review
denied (Minn. Oct. 24, 2007). An appellate court
review[s] the juvenile court’s decision to certify [a proceeding]
to adult court for an abuse of discretion . . . [Appellate courts]
will not disturb a finding about whether public safety would be
served by retaining the proceeding in juvenile court unless it is
clearly erroneous. In determining whether the juvenile court’s
findings are clearly erroneous, [appellate courts] view the
record in the light most favorable to the juvenile court’s
findings.

In re Welfare of J.H. , 844 N.W.2d 28, 34-35 (Minn. 2014) (citation omitted). On appeal
from a certification order, this court presumes that the factual allegations in the delinquency
petition and the charges against the juvenile are true. In re Welfare of U.S. , 612 N.W.2d
192, 195 (Minn. App. 2000).
In challenging the district co urt’s certification order, T.D.B. attacks the credibility
of Dr. Hertog and the district court’s weighing of the evidence , and h e asserts that the
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district court failed to place the burden of proof on the state. T.D.B. argues that “[t]he state
cannot be found to meet its burden by clear and convincing evidence when a court merely
‘balances’ the factors” and that the district court “failed to specify how public safety would
be at risk if [T.D.B.] were an EJJ.”
The district court found that four of the six public-safety factors favor certification.
As to the first factor, t he district court found “ [t]he seriousness of the charged offense
strongly weighs in favor of adult certification.” The district court based this determination
on the nature of the cha rges, which involved “an abuse of a position of trust and of a
familial relationship, which generally is considered to have a significant impact on a
victim.” The district court also reasoned that the second incident “is alleged to have
occurred when [T.R.] tried to reconcile the past relationship with the first criminal actions.”
The district court found that the se two circumstances weigh “heavily in favor of
certification.”
The district court concluded the second factor, T.D.B.’s culpability, also weighs in
favor of certification. The district court reasoned that T.D.B. admitted “to having sexual
intercourse on two occasions with a fourteen year old. That he had a condom with him on
the first occasion indicates a certain amount of planning, as does his alleged behavior in
driving [T.R.] out into the country, away from any people who could help .” The district
court found no mitigating factors to diminish T.D.B.’s culpability and determined that his
culpability weighs in favor of certification.
As to the third factor, the district court weighed T.D.B.’s lack of delinquency history
against certification. However, the district court noted T.D.B.’s admission to Dr. Hertog
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that he drank alcohol while on conditional release for the underlying offenses, which was
a violation of his court -ordered condition of release requiring law -abiding conduct. The
district court expressed concern that T.D.B. “thinks nothing of committing underage
consumption while on pre-trial release, as this may reflect criminogenic thinking.”
The district court also weighed the fourth factor against certification. The district
court noted that T.D.B. had programming for mental health concerns and that he was
recommended for medication for depression and anxiety . He also had coun seling related
to growing up with an alcoholic parent. The district court concluded, “This factor weighs
in favor of retaining the case in juvenile court.”
The district court addressed the fifth factor, the adequacy of punishment or
programming available in the juvenile justice system, in conjunction with the sixth factor,
the dispositional options available for the child. The district court determined that “[t]he
lack of evidence in the record of adequate punishment and programming options in the
juvenile system compared to the adult system weighs in favor of certification. ” In doing
so, the district court compared the punishment and treatment available in the adult and
juvenile systems, as well as the amount of time that would likely remain for supervision if
the juvenile court retained jurisdiction for an EJJ prosecution. Here, the court emphasized
its primary concern: there would not be enough time for adequate punishment and
programming in the juvenile system under an EJJ disposition.
The district court reasoned:
As of the date of this order, [T.D.B.] has less than 17 months
before his 21st birthday. At best, it will be several weeks
before the matter is tried; if there is a conviction, there will be
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additional delay before the sentencing is conc luded, as a
presentence investigation takes weeks to complete.
Realistically, if [T.D.B.] is found responsible for either
or both charges in this case, once sentenced he would have a
maximum of thirteen months of treatment and supervision.

The district court further reasoned that 13 months of supervision was “insufficient
punishment, if it can fairly be considered punishment at all, for two sexual assaults
perpetrated against [T.R.] on a deserted country road, by someone whom the child trusted,
looked up to, and respected.”
The district court also reasoned that “thirteen months is . . . an insufficient amount
of time under supervision to ensure public safety through the monitoring of [T.D.B.’s] use
of knowledge and skills gained in treatment,” noting that “Dr. Hertog’s credible testimony
amply supports [this] finding.” In doing so, t he district court rejected T.D.B.’s argument
that “this is merely an inappropriate boundary case that can easily be addressed by a
twenty-week education program,” along with Grace’s recommendation for such a program.
The district court noted that Grace did not accept the allegations against T.D.B. as true,
which the district court was required to do. The district court also noted that Grace’s
“‘psychosexual’ asses sment appa rently did not include any tool s specific to sexual
behavior or deviancy. The conclusions were based largely on what [T.D.B.] chose to share
with the evaluator.” The district court ultimately determined that Grace’s
“recommendations do not adequately address the needs of [T.D.B.] if he is guilty of either
of the charged offenses.”
Based on the lack of adequate time for treatm ent under an E JJ disposition, t he
district court found that the sixth factor weighed in favor of certification. It explained that
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[i]t is imperative for public safety, as well as for [T.D.B.]
personally . . . that [T.D.B.] have adequate time to develop
therapeutic rela tionships and fully complete all necessary
treatment. Because . . . there is inadequate time in the juvenile
system to accomplish this, this factor weighs in favor of
certification.

Having found that four out of six factors favored certification, th e district court
concluded:
Balancing all of the factors, the Court finds the S tate has met
its burden of establishing that keeping [T.D.B.’s] case in
juvenile court under extended jurisdiction would not serve
public safety. The seriousness of not one but two criminal
sexual conduct offenses, his culpability, and the limited
punishment and length of supervisi on available under an [EJJ
prosecution] a ll weigh in favor of certification in spite of
[T.D.B.’s] lack of history in the juvenile system and possible
amenability to treatment.

T.D.B. argues that the district court “failed to properly analyze the evidence in light
of the state having the burden of proof.” The record refutes that argument. The district
court acknowledged that the state had the burden of proof, and the district court explained
why the state had shown that T.D.B.’s lack of delinquency record and minimal
programming history were outweighed by the other factors . Simply put, time work ed
against T.D.B. He was approximately 17 months away from his 21st birthday at the time
of the certification decision. Although t he presumptive adult sentence for the charged
offenses is a 3 6-month stayed prison sentence , T.D.B. could be supervised on probation
for a much longer period of time in adult court than in juvenile court . See Minn. Stat.
§ 609.135, subd s. 1, 2 (2014) (stating that the court may stay imposition and order
probation and that the stayed sentence shall not exceed “ the maximum period for which
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the sentence of imprisonment might have been imposed ”); Minn. Stat. § 609.344, subd. 2
(2014) (indicating that the maximum sentence for each of T.D.B.’s offenses is five years’
imprisonment). On this record, the district court did not err in determining that a limited
period of EJJ probation would not allow for adequate programming and supervision and
therefore would not serve public safety.
T.D.B. also attacks Dr. Hertog ’s credibility and argues that the district court
assigned too much weight to the seriousness of the offense and the ability to punish, and
not enough weight to rehabilitation. “On matters of credibility and the weight to be given
the testimony of witnesses, [appellate courts] defer to the [district] court” when reviewing
a district court’s certification order. J.H., 844 N.W.2d at 39. The district court explained
why it rejected Grace’s assessment and recommendations, and why it found Dr. Hertog
credible, including that “the educational and clinical expertise of [Grace] is significantly
less than the expertise demonstrated by Dr. Hertog.” We defer to this credibility
determination.
As to the weighing of the public-safety factors, the district court’s explanation of its
reasoning satisfies us that it appropriately balanced the factors. Despite T.D.B.’s lack of
delinquency history and the likelihood that he can be rehabilitated, the district court did not
err in finding that a limited term of supervision under EJJ probation would be inconsistent
with public safety given t he circumstances of this case. We therefore conclude that the
district court did not abuse its discretion in weighing the factors and determining
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that the state had met its burden of showing, by clear and convincing evidence, that
retaining the proceeding in juvenile court would not serve public safety.
Affirmed.