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

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1127

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

Filed January 14, 2019
Reversed and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-JV-18-75

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

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

Michael O. Freeman, Hennepin County Attorney, Morgan Lee Miller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the district court’s extended jurisdiction juvenile (EJJ)
designation, arguing that the state failed to prove by clear and convincing evidence that an
EJJ designation would serv e public safety. Because the record does not clear ly and

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convincingly establish that public safety would be served by an EJJ designation, we reverse
and remand.
FACTS
In July 2017, then 16-year-old appellant M.D.T . and other individuals planned to
rob a known drug dealer. Appellant contributed to the plan by setting up contact with the
drug dealer. Appellant saw the other individuals passing around a gun on their way to the
location of the purported drug deal . Upon arrival, appellant waited on the porch while
another individual went to the side of the house with a gun. When the drug dealer arrived,
the individual with the gun attempted to rob him. Appellant then heard gun shots and ran
back to the car. Appellant did not call 911.
Appellant was subsequently charged, in a delinquency petition, with aggravated
robbery in the first degree, a felony pursuant to Minn. Stat. § 609.245, subd. 1 (2016) .
Appellant was not charged until approximately five months after the alleged offense. She
has since moved to Alabama and currently resides with her grandmother. She has remained
law abiding since the date of the offense,
The state moved to designate appellant ’s charge an EJJ prosecution pursuant to
Minn. Stat. § 260B.130, subd. 1(3) (2018 ). The state and appellant stipulated to the
admission of four items of evidence: the probable-cause statement supporting the charge
against appellant, an EJJ study by an officer from the Hennepin County Juvenile Probation
Department, the probation officer’s dispositional recommendations that had been prepared,
and a psychological evaluation of appellant . No other evidence was submitted and no

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witnesses to testify regarding the motion were called. H earings were held on the moti on
in May 2018, where the parties argued their respective positions to the district court.
The EJJ Study Recommendation
The EJJ study recognized that appellant’s alleged offense was serious. It
acknowledged that appellant knowingly and intentionally contacted the victim to set up the
drug deal, knew that the group’s inte ntion was to rob him, and knew that one of her
companions possessed a firearm. The report indicated that appellant should be viewed as
fully culpable for her role in the alleged offense. The report, however, also noted that
appellant had no known record of delinquency and that the prospect of a successful
intervention was unknown. While the study noted that jurisdiction would be longer if t he
proceeding was designated an EJJ prosecution, the report indicated that Hennepin County
Juvenile Probation would be recommending community -based consequences and
intervention. The report recommended the proceeding not be designated an EJJ
prosecution.
Psychological Report
The psychological report indicated that appellant has some symptoms co nsistent
with depression and had frequently used marijuana in the past. It stated that appellant
reported interpersonal difficulties such as withdrawing from peers , mood changes, and
difficulty getting along with others. However, the report went on to state that appellant’s
risk for engaging in future violent acts was low. It noted that the offense was her first
interaction with the legal system and that the offense was complete d with a group of
negative peers with whom she was newly acquainted. The report stated that appellant had

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distanced herself from those peers, moved to Alabama, and dev eloped a strong and
emotionally-supportive relationship with her grandmother. It also indicated that appellant
had ceased using marijuana, demonstrated a balanced self -esteem and an ability to adapt
to new environments, and was adjusting well to living in Alabama.
The report indicated that appellant has had no involv ement in special education
programming, has no history of mental -health treatment, and has not engaged in other
supportive services. Like the EJJ study, the reported stated that the prospect of successful
intervention was unknown. The report ultimately r ecommended individual therapy,
monitoring with respect to schooling, and that family therapy might also prove beneficial.
The report did not give a specific recommendation as to whether appellant’s proceeding
should be designated an EJJ prosecution.
EJJ Order
The district court acknowledged that the EJJ study recommended the matter proceed
as a juvenile delinquency prosecution. However, it found that public safety would best be
served by designating the proceeding an EJJ prosecution, after it weighed the evidence
according to the factors prescribed in Minn. Stat. § 260B.125, subd. 4 (2018).
Appellant filed a notice of appeal challenging the district court’s order designating
her proceeding an EJJ prosecution. Appellant argues that the district court had no basis to
deviate from the EJJ study recommendation and that the record lacks clear and convincing
evidence to support a finding that public safety would be served by an EJJ designation.

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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, subd. 2 (2018). This court will not reverse
unless the district court’s findings are clearly erroneous. In re Welfare of D.M.D., Jr., 607
N.W.2d 432, 437 (Minn. 2000). In determining whether the district court’s findings are
clearly erroneous, we view the record in the light most favorable to the district court’s
findings. In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).
The state could have designated appellant’s prosecution EJJ without a hearing
because appellant was “alleged to have committed an offense for which the Sentencing
Guidelines and applicable statutes presume a commi tment to prison.” Minn. Stat.
§ 260B.130, subd. 1(2) (2018). However, the state chose to request that the proceeding be
designated EJJ pursuant to Minn. Stat. § 260B.130, subd. 1(3). That meant that the district
court would make the EJJ designation determination after a hearing was held on the issue.
Id.
When considering EJJ designation pursuant to subdivision 1(3), the district court
weighs six public-safety factors to determine if appellant is a risk to public safety,
(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 of fense, 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;

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(5) the adequacy of the punishment or programming available in the juvenile
justice system; and
(6) the dispositional options available for the child.

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 listed in this subdivision.

Minn. Stat. § 260B.125, subd. 4.
The distric t court weighed the six factors . It determined that of the two most
important factors, the severity of the alleged offense i n terms of community protection
weighed in favor of EJJ designation, while the child’s prior record of delinquency weighed
against EJJ designation . The district court also found that because appellant has been
cooperative and remained law abiding, factor four, the past willingness to participate
meaningfully in available programming, w ent in her favor, while factor two , her
culpability, did not. The record supports the district court’s determination on these factors.
This district court also found that factor five , the adequacy of the punishment or
programming available in the juvenile justice system, weighed in favor of EJJ designation,
and that factor six, the dispositional options available, was neutral. But the record evidence
does not support the district court ’s determination on these factors. As to factor five , the
only suggestion of programming offered in the EJJ study recommendation was that
Hennepin County Juvenile Probation would be recommending community -based
consequences and interventions. There was not a recommendation for an out of home
placement. The psychological report, additionally, only recommended appellant engage in
individual therapy and monitoring in regards to her schooling. The programming
recommended by the EJJ study and the psychological report are clearly available if the case

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remained a juvenile delinquency prosecution. Also, in terms of the adequacy of the
punishment, the EJJ study report indicates that the punishment would have been ad equate
under juvenile delinquency jurisdiction.
The district court, however, did not address what additional programming would be
available if appellant was designated EJJ. Instead, it focused its analysis on the severity of
the offense and the length of jurisdiction, noting that “[a]s an EJJ prosecution, [appellant]
would be under the court’s jurisdiction until [she] turns the age of 21,” but if “the case were
to proceed as a juvenile delinquency prosecution, [appellant] would only be on probation
for a little over one year.” But, we noted in In re Welfare of B.N.S. , extending the length
of jurisdiction is not, in and of itself , a justification for designating a case as EJJ,
particularly when no evidence suggesting what additional programming would be available
under an EJJ designation, which is not available under a juvenile delinquency prosecution.
647 N.W.2d 40, 43-44 (Minn. App. 2002) . We conclude that the district c ourt’s
determination on factor five is clearly erroneous because there was no evidence, let alone
clear and convincing evidence, as to what additional program ming would have been
available under an EJJ designation—or how that additional programing would serve public
safety—that would not have been available under a juvenile delinquency prosecution.
We also conclude that the district c ourt’s determination on factor six is clearly
erroneous because the district court , again, failed to indicate what dispositional options
would be available under EJJ designation that would not have been available under juvenile
delinquency. The EJJ study report did not indicate that different dispositional options
would have been available under an EJJ designation. The district court’s failure to find a

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different dispositional option available under EJJ designation, other than to indicate EJJ
would be longer, does not suggest a determination that an EJJ designation would serve
public safety.
In concluding that the district court erred in its determination on factors five and six,
and that factors three and four weigh against designation, we note that the six statutory
public safety factors are not a rigid, mathematical equation and that the district court has
discretion to weigh them in the context they are presented. In re Welfare of D.M.D., Jr. ,
607 N.W.2d at 438. However, when the two most important factors indicated in the statute
cancel each other out, the district court must then carefully weigh the remaining factors
and only designate a child’s prosecution EJJ if there is clear and convincing evidence that
the designation serves public safety. Id.
While the district court was understandably troubled by the severity of the offense,
as are we, it failed to explain how the remaining factors show by clear and convincing
evidence that public safety would be served by an EJJ designation. As discussed, the only
record evidence suggested that appellant was at a low risk to engage in future violent acts,
has been law abiding since the offense, has distanced herself from negative peers, has
developed a supportive relationship with her grandmother in Alabama , has stopped using
marijuana, and could receive communit y-based con sequences while on juvenile
delinquency probation. While it is true that appellant should be seen as culpable for her
role in what was a severe offense, it is also true that she is remors eful and has been
cooperative with law enforcement.

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The state argues in its brief that the district court was not required to follow the
recommendation provided by the probation officer in the EJJ study report. See Minn. R.
Juv. Delinq. P. 19.03, subd. 1 (stating the court may order a study concerning the child who
is the subject of the EJJ proceeding). We agree. But if the district court is going to reject
that recommendation, it must base its decision on the other record evidence while
employing the proper standard of proof, which in this case is clear and convincing.
In this case, the key evidence before the district court was the stipulated reports,
neither of which support ed EJJ designation . The state could have called and cross -
examined the probation officer to testify regarding why she did not recommend EJJ or to
further inquire into the different programming or dispositional options available under an
EJJ designation. But i t did not. The state could also have called its own expert to
recommend EJJ designation. But it did not. Although, the district court was not required
to follow the recommendation in the EJJ study, it was required to base its determination on
the evidence before it. Consequently, the district court’s finding that the state proved by
clear and convincing evidence that public safety would be served by designating the
proceeding an EJJ prosecution is clearly erroneous.
Therefore, we reverse and remand this case to the district court for a juv enile
delinquency prosecution.
Reversed and remanded.