In the Matter of the Welfare of: C. M. S., 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This opinion will be unpublished and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
A18-0235

In the Matter of the Welfare of: C. M. S., Child.

Filed August 20, 2018
Affirmed
Johnson, Judge

Ramsey County District Court
File No. 62-JV-17-1544

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

John Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
C.M.S. is a 17-year-old boy who is charged with two counts of first-degree criminal
sexual conduct, two counts of kidnapping, and four counts of first-degree aggravated
robbery. The complaint alleges that, when he was 16 years old, C.M.S. and a group of
companions forced two female teenagers to engage in sexual acts at gunpoint. The juvenile
court granted the state’s motion to certify C.M.S. for prosecution as an adult. We affirm.
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FACTS
At approximately 2:00 a.m. on June 6, 2017, two female teenagers, whom we will
call A.M. (who was 17 years old ) and A.J. (who had just turned 18 years old ), were at
Harriet Island in the city of St. Paul with two male friends, J.D. (who was 15 years old)
and J.S. (who was 16 years old). The female teenagers and their male friends had driven
to Harriet Island with some food. Whi le they were eating, C.M.S. and a group of four to
five males walked by. J.S. recognized C.M.S. (who was 16 year s old) as a student at his
high school, so he and J.D. approached C.M.S. and his companions . After they engaged
in a brief conversation, J.S. and J.D. began to walk back toward the two female teenagers.
As J.S. and J.D. were walking back, C.M.S. and three male companions (D.A.E.,
V.J.H., and D.J.V., whose ages ranged from 18 to 20) approached them in a hostile manner.
C.M.S. brandished a small silver gun and pointed it at the four teenagers. C.M.S. and his
companions forced them to hand over their cell phones and cash. C.M.S. forced the two
boys at gunpoint to strip to their underwear and lie face down in the grass. C.M.S. grabbed
A.M. by her hair, put the gun to her head, and forced her into the back seat of the teenagers’
car. Once inside the car, C.M.S. pointed the gun at A.M.’s chest and forced her to remove
all of her clothing. He forcibly inserted his penis into her mouth. D.J.V. opened the car
door and said, “Let her do that to me, it’s my turn.” D.J.V. got into the back seat and
forcibly inserted his penis into A.M.’s mouth. Meanwhile, C.M.S. got out of the car and
forced A.J. into the front seat of the car, forced her to remove all her clothing, and forcibly
inserted his penis into her vagina. When D.J.V. got out of the back seat, C.M.S. went to
the back seat and again forcibly inserted his penis into A.M.’s mouth. C.M.S. pulled A.M.
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out of the car and inserted his penis into her vagina. Then D.J.V. forcibly inserted his penis
into A.J.’s mouth. C.M.S. and his companions forced the four teenagers into their car,
threw the teenagers’ car key into the bushes, threatened that someone would shoot them if
they left within 20 minutes, and fled.
The state charged C.M.S. in juvenile court with two counts of first-degree criminal
sexual conduct while armed with a dangerous weapon, in violation of Minn. Stat.
§ 609.342, subd. 1(d) (2016); two counts of kidnapping, in violation of Minn. Stat.
§ 609.25, subd. 1(2) (2016); and four counts of first-degree aggravated robbery, in violation
of Minn. Stat. § 609.245, subd. 1 (2016).
The state promptly moved to certify C .M.S. for prosecution as an adult. The
juvenile court conducted a certification hearing on three days in December 2017. The state
called two witnesses: Rebecca Jorgensen, a court-appointed licensed psychologist, and Ken
Barber, a juvenile probation officer. C.M.S. called two witnesses: Gerald Henkel-Johnson,
a licensed psychologist, and L.S., C.M.S.’s grandmother. In January 2018, the juvenile
court granted the state’s motion and certified C.M.S. for prosecution as an adult. C.M.S.
appeals.
D E C I S I O N
C.M.S. argues that the district court erred by granting the state’s motion to certify
him for prosecution as an adult.
The general rule is that children accused of criminal conduct are tried in the juvenile
division of the district courts. Minn. Stat. § 260B.101, subd. 1 (2016). But a child who is
14 years old or older may be certified for prosecution as an adult in district court. Minn.
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Stat. § 260B.125, subd. 1 (2016). If a child is alleged to have committed an offense that
would result in a pre sumptive commitment to prison if the child were an adult, and if the
child is 16 or 17 years of age at the time of the alleged offense, certification is presumed.
Id. § 260B.125, subd. 3. “I n presumptive -certification proceedings, the state bears the
burden of showing that (1) the juvenile was 16 or 17 years old, and (2) the alleged offense
carries a presumptive prison sentence or that it is a felony offense involving a firearm.” In
re Welfare of P.C.T., 823 N.W.2d 676, 681 (Minn. App. 20 12), review d enied (Minn.
Feb. 19, 2013). If the state carries its burden on those two issues, the juvenile bears the
burden of proving “by clear and convincing evidence that retaining the proceeding in
juvenile court serves public safety.” Minn. Stat. § 260B.125, subd. 3 (last paragraph); see
also Minn. R. Juv. Delinq. P. 18.06, subd. 1. If the juvenile satisfies his burden, the juvenile
court retains jurisdiction in an extended-jurisdiction juvenile (EJJ) prosecution. Minn. Stat.
§ 260B.125, subd. 8(b); In re Welfare of J.H., 844 N.W.2d 28, 35 (Minn. 2014).
In determining whether a juvenile should be certified for adult prosecution, a
juvenile court must consider the following six factors:
(1) the seriousness of the alleged offense in terms of
community prot ection, 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;

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(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. § 260B.125, subd. 4. A juvenile court must give greater weight to the first and
third factors. Id.
The juvenile court “has considerable latitude in deciding whether to certify a case
for adult prosecution.” P.C.T., 823 N.W.2d at 681 (quotation omitted). This court applies
a clear-error standard of review to a juvenile court’s findings of fact. J.H., 844 N.W.2d at
34-35. “A finding is clearly erroneous only if there is no reasonable evidence to support
the finding or when an appellate court is left with the definite and fir m conviction that a
mistake occurred.” Id. at 35 (quotation omitted). This court applies an abuse-of-discretion
standard of review to a juvenile court’s ultimate certification decision. In re Welfare of
N.J.S., 753 N.W.2d 704, 710-11 (Minn. 2008); In re Welfare of U.S., 612 N.W.2d 192, 195
(Minn. App. 2000).
In this case, the juvenile court found that four of the six factors favor certification.
The juvenile court found that the first factor favors certification because “th[e] offense was
violent and cruel,” “[t]he victims were randomly selected and held at gunpoint ,” and “the
sexual assaults were not typical juvenile sex offenses.” The juvenile court found that the
second factor favors certification because C.M.S. ’s “culpability was significantly hig her
than the other suspects” and “no factors . . . mitigate his culpability.” The juvenile court
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found that the third factor favors an EJJ designation because C.M.S.’s prior record of
delinquency includes only a runaway petition and a fleeing -a-police-officer-on-foot
petition. The juvenile court found that the fourth factor favors an EJJ designation because
C.M.S.’s “programming history . . . is limited.” The juvenile court found that the fifth
factor favors certification because the punishment or programming available in the juvenile
justice system is inadequate to treat C.M.S. “given the level of . . . violence involved in
these crimes” and inadequate “to address [his] behavior.” The juvenile court found that
the sixth factor favors certification because certification “would provide some correctional
supervision for the remainder of [C.M.S.’s] life” and “that a longer period of incarceration
and supervision . . . best serves public safety.” The juvenile court found that, overall, “the
weight of the evi dence demonstrates that public safety is best served by certification to
adult court.” T he juvenile court concluded that C.M.S. did not “show by clear and
convincing evidence that public safety is served by retaining the proceedings in the juvenile
system under an Extended Jurisdiction Juvenile designation.” Accordingly, the juvenile
court granted the state’s motion.
On appeal, C.M.S. makes two arguments, which we address in turn below.
A.
C.M.S. argues that the juvenile court erred by placing too much weight on evidence
that C.M.S. was not sufficiently motivated to participate in juvenile treatment. He contends
that the juvenile court’s “conclusion that [he] was poorly motivated to change appears to
be a superficial description of a symptom —not an intentional posture adopted by” him.
C.M.S. does not specifically identify the portion of the juvenile court’s order that he is
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challenging, but he appears to refer to the juvenile court’s analysis of the fifth factor , in
which the juvenile court stated, “it is telling that even Henkel -Johnson testified that
[C.M.S.] ‘is minimally motivated for treatment at this time.’”
Henkel-Johnson testified generally in support of C.M.S.’s position that the state’s
certification motion should be denied. Henkel-Johnson testified that, based on the
psychological and personality tests he administered, five of the six factors favored an EJJ
designation. He testified that there is a short “window of opportunity” at the present time
to rehabilitate C.M.S. through trea tment programs in the juvenile justice system, which
would benefit public safety in the long term. But he also testified on cross-examination
that C.M.S. was “minimally motivated” to engage in treatment and that C.M.S. “would be
difficult to treat .” T he juvenile court’s order does not misstate Henkel -Johnson’s
testimony.
The juvenile court’s reference to Henkel -Johnson’s statement that C.M.S. is
minimally motivated was not central to the juvenile court’s analysis of the fifth factor. The
juvenile court devoted two pages of its order to the fifth factor. The juvenile court found
that the punishment or programming available in the juvenile justice system is inadequate
to treat C.M.S. “given the level of . . . violence involved in these crimes” and inadequa te
“to address [C.M.S.’s] behavior.” The juvenile court relied primarily on the testimony of
Jorgenson and Barber. The juvenile court also credited the testimony of Jorgenson and
Henkel-Johnson, both of whom testified that the alleged offense is atypical for a juvenile.
The juvenile court mentioned Henkel -Johnson’s testimony concerning C.M.S.’s
motivation to engage in treatment only in conjunction with its description of Jorgenson’s
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testimony that it is not possible to provide adequate treatment to C.M.S. in the juvenile
system. The juvenile court’s reference to Henkel-Johnson’s testimony was appropriate. It
also appears that the juvenile court would have made the same finding concerning the fifth
factor even if it had not cons idered Henkel-Johnson’s te stimony concerning C.M.S.’s
motivation to engage in treatment.
C.M.S. further contends that he could be adequately treated in the juvenile justice
system. The juvenile court relied in part on Barber’s testimony to find “that the punishment
or programming in the juvenile system is inadequate given the level of violence involved
in these crimes.” Barber testified that if C.M.S. were given an EJJ designation, he would
be treated in a juvenile residential -placement program for between 9 and 18 months and
remain on probation until he was 21 years old. The juvenile court found that this
disposition would not sufficiently address the seriousness of the offense of which C.M.S.
is charged. Barber also testified that three of four juvenile treatment programs declined to
accept C.M.S. for treatment into their programs. The juvenile court noted that the one
program that agreed to conditionally accept C.M.S. is a non -secure, short-term program,
which would provide insufficient security based on the charged offense. The juvenile court
did not err in relying on Barber’s testimony and determining that C.M.S. could not be
adequately treated in the juvenile justice system.
C.M.S. also challenges Jorgenson’s statement in her written report that C.M.S. is
“hostile, arrogant, and defensive.” Jorgenson met with C.M.S. twice and administered four
assessments. Jorgenson testified that C.M.S. was “generally combative and
uncooperative.” She stated that, at times, he “refused to an swer certain questions, even
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though they [were] just about basic history.” She described C.M.S.’s attitude as “hostile,
defensive, [and] guarded” and stated that his level of cooperation was significantly lower
than and atypical to other juveniles. The juvenile court did not repeat these statements by
Jorgenson. The juvenile court merely stated that Jorgenson tes tified that “treatment for
[C.M.S.] would be more challenging” and that Jorgenson “did not believe there was
adequate time or resources within the juvenile system to treat him.” The juvenile court did
not err in the manner in which it relied on Jorgenson’s testimony.
Thus, the juvenile court did not err by finding that the fifth factor favor s
certification.
B.
C.M.S. argues that the juvenile court erred in its ultimate finding that C.M.S. did
not prove by clear and convincing evidence that public safety would be best served by a
prosecution in juvenile court. He contends that the juvenile court should have given more
weight to the third factor, which favors an EJJ proceeding.
In ruling on a certification motion, a juvenile court must balance the six statutory
factors. See J.H., 844 N.W.2d at 36; In re Welfare of D.M.D., 607 N.W.2d 432, 437 (Minn.
2000). But two of the six factors—the first factor and the third factor—are most important.
“A juvenile court 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.’” J.H., 844 N.W.2d
at 36 (quoting Minn. Stat. § 260B.125, subd. 4). In this case, one of the two most important
factors—the seriousness of the offense—favors certification, and the other—C.M.S.’s lack
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of a prior delinquency record—favors an EJJ proceeding. C.M.S. argues that the juvenile
court erred by placing more weight on the first factor than on the third factor.
With respect to the first factor, the juvenile court stated that t he charged offenses
were “unprovoked” criminal acts committed upon random teenage d victims in a public
place. The juvenile court stated that the alleged crimes had a “horrific” impact on the
victims. The juvenile court also noted that aggravating factors were present, including the
use of a firearm, multiple forms of penetration on multiple victims, particular cruelty, and
the presence of a child . See Minn. Stat. § 260B.125, subd. 4(1); Minn. Sent. Guidelines
2.D.3.b(1)-(14) (2016). The juvenile court stated, “It is difficult to imagine more heinous
and serious crimes than those [C.M .S.] is accused of committing.” When discussing the
second factor, the juvenile court stated that C.M.S.’s “culpability is very high.” The
juvenile court stated that C.M.S. demonstrated a high level of criminal sophistication and
planning or premeditation and that he initiated the sexual assaults and robberies.
With respect to the third factor, the juvenile court stated merely that C.M.S. had two
prior charges, one for being a runaway and another for fleeing a police officer. The juvenile
court found, without additional discussion, that the third factor favors an EJJ proceeding.
The relevant question is whether the juvenile court abused its discretion when it
analyzed and balanced the six public-safety factors. The state argues that In re Welfare of
J.H. and In re Welfare of S.J.T. support the juvenile court’s balancing of the factors . In
each of those cases, the juvenile court determined that the seriousness of the alleged offense
favored certification but that the prior -record-of-delinquency factor favored an EJJ
proceeding. See J.H., 844 N.W.2d at 36; In re Welfare of S.J.T., 736 N.W.2d 341, 353-54
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(Minn. App. 2007), review denied (Minn. Oct. 24, 2007). In J.H., the juvenile court found
that the charged offenses were “serious crimes” and “especially violent because [the
victim] was forcibly removed from a car by several men, thrown onto a mattress, held down
by several men, and then raped by a gang member ” and that “ the rape had a significant
impact on” the victim. 844 N.W.2d at 36. In S.J.T., the juvenile court found that the
charged offense was “very serious,” that the juvenile used “threats, intimidation, and force”
to sexually abuse the victim, that the abuse occurred “too many times to count ,” and that
the offenses “clearly affected” the victim. 736 N.W.2d at 353-54. The juvenile court, in
each case, found that the juvenile had no prior record of delinquency. See J.H., 844 N.W.2d
at 36; S.J.T., 736 N.W.2d at 354. Nonetheless, in each case, the juvenile court certified the
juvenile for prosecution as an adult. See J.H., 844 N.W.2d at 4 0; S.J.T., 736 N.W.2d at
355. A juvenile court is not required “to ‘expressly weigh’ these two factors separately
from the other public safety factors, or to ‘specifically delineate’ the impact of both of these
factors on its certification determination.” J.H., 844 N.W.2d at 36. Rathe r, a “juvenile
court is only required to give greater weight to those two factors than the other factors”
when determining whether public safety would be best served by a prosecution in juvenile
court. Id.
Thus, the juvenile court did not clearly err in its allocation of weight to the first and
third factors and did not abuse its discretion in its ultimate finding.
In sum, the juvenile court did not err by granting the state’s motion to certify C.M.S.
for prosecution as an adult in district court.
Affirmed.