In the Matter of the Welfare of: B. C. L., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0045

In the Matter of the Welfare of: B. C. L., Child.

Filed August 9, 2021
Affirmed
Worke, Judge

Kandiyohi County District Court
File No. 34-JV-20-218

Shane D. Baker, Kandiyohi County Attorn ey, Julianna F. Passe, Assistant County
Attorney, Willmar, Minnesota (for appellant State of Minnesota)

Drake D. Metzger, Metzger Law Firm, LLC, Minneapolis, Minnes ota (for respondent
B.C.L.)

Considered and decided by Gaïtas, Presidi ng Judge; Segal, Chief Judge; and Worke,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant argues that the district cour t erred in determin ing that respondent
established by clear and convincing evidence that retaining the proceeding in juvenile court
serves public safety. We affirm.
FACTS
Appellant State of Minnesota filed a juvenile delinquency petition charging
respondent B.C.L. with first-degree criminal sexual conduct, third-degree criminal sexual
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conduct, and fifth-degree criminal sexual conduct. The state alleged that B.C.L. drove an
underaged girl that he had known for a long time to a park where he “aggressively force[d]
[her] to perform oral sex on him” and then forced her to have vaginal intercourse. B.C.L.
left the girl at the park without her shoes or cellphone. She walked to a nearby residence,
told the residents what happened, and the police were called. The girl told the police that
she “froze,” did not know what to do, and “just gave in.” She also reported that she was in
pain and rated it a seven out of ten on the pain scale.
The state moved for a presumptive certifica tion for B.C.L. to be prosecuted as an
adult. B.C.L. was 16 years old at the time of the alleged offense.
B.C.L. submitted to two juvenile presumpt ive certification evaluations. The first
was done by Dr. Tricia Aiken, a licensed psychologist. Dr. Aiken concluded that extended
juvenile jurisdiction (EJJ) was the appropriate course of action rather than certification
because B.C.L “is at relatively low risk to re offend, he has no prior adjudicative history,
and he has a very limited programming history as well.”
The second evaluation was done by April Jones, a probation officer for Kandiyohi
County. Jones outlined two outpatient sex-specific treatment programs that B.C.L. could
attend. She concluded that “it appears public safety can be served and there is adequate
time to provide supervision and programming through EJJ designation,” and recommended
that B.C.L. be designated EJJ.
Following a hearing, the district court denied the state’s petition and retained the
matter under EJJ. This appeal followed.
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DECISION
The state challenges the district court’s de termination that B.C. L. established by
clear and convincing evidence that retaining the proceeding in juvenile court serves public
safety. “A district court has considerable latit ude in deciding whether to certify, and this
court will not upset its decision unless its findings are clearly erroneous so as to constitute
an abuse of discretion.” In re Welfare of S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007)
(quotation omitted), review denied (Minn. Oct. 24, 2007). “W e 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 re Welfare of J.H., 844 N.W.2d 28, 35 (Minn. 2014).
Certification as an adult is presumed for a 16- or 17-year-old child who is alleged
to have committed a crime that involves a “presumptive commitment to prison under the
Sentencing Guidelines.” Minn. Stat. § 260B.125 , subd. 3 (2020). It is undisputed that a
presumption of adult certification arose in this case because B.C.L. was 16 years old at the
time of the offense and his charges include a presumptive prison sentence.
When there is a presumption of certificati on, the child has the burden to rebut the
presumption by “demonstrati ng by clear and convincing evid ence that retaining the
proceeding in the juvenile court serves public safety. If the court finds that the child has
not rebutted the presumption by clear and convincing evidence, the court shall certify the
proceeding.” Id. There are six factors that the di strict court must consider when
determining whether public safety is served by certifying the matter:
(1) the seriousness of the alleged offense in terms of
community protection, including the existence of any
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aggravating factors recognized by the Sentenci ng Guidelines,
the use of a firearm, and the impact on any victim;
(2) the culpability of the child in co mmitting 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;
(4) the child’s programming history, including the child’s past
willingness to participate me aningfully 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.

Id., subd. 4 (2020). While the district court weighs all of the factors, “the court shall give
greater weight to the seriousness of the alle ged offense and the child ’s prior record of
delinquency than to the other factors.” Id.
The state argues that the district court failed to give enough weight to the first factor
and abused its discretion in weighing the fourth, fifth, and sixth factors. We address each
argument in turn.
First factor—seriousness of the alleged offense
The state first argues that the district cour t abused its discretion by “failing to accord
due weight to the first factor.” A district court does not need to weigh the factors in a rigid
mathematical formula. In re Welfare of D.M.D., Jr., 607 N.W.2d 432, 438 (Minn. 2000).
But “public safety is the touchstone of the an alysis,” and the district court is statutorily
required to place a greater emphasis on the first and third factors. In re Welfare of P.C.T.,
823 N.W.2d 676, 685 (Minn. App. 2012), review denied (Minn. Feb. 19, 2013).
In considering the first factor, the district court noted that B.C.L.’s charges “are very
serious . . . . [and] create a significant concern fo r public safety.” Th e district court also
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noted the aggravating factors of particular cruelty and multiple forms of penetration. The
district court stated that it placed greater weight on the first and third factors in its
conclusion, but still found that B.C.L. demonstrated by clear and convincing evidence that
EJJ serves public safety.
The state relies on P.C.T. to support its argument that, even though the district court
found this factor in favor of certification, it failed to apply appropriate weight to the severity
of the crime and impact on the victim. See 823 N.W.2d at 678. In P.C.T., we reversed a
district court’s order granting EJJ. Id. at 678-79. The 16-year-old defendant was charged
with six counts of aiding-and-abetting sec ond-degree attempted murder based on three
incidents of drive-by shootings. Id. The district court concluded that the first three factors
favored adult prosecution, and the last three favored EJJ. Id. at 682. This court concluded
that the district court abused its discretion in part because it did not apply enough weight
to the first and third factors, emphasizing th at “[t]he first statutory factor weigh[ed]
particularly heavy here, given the extrem e gravity of respondent’s offenses.” Id. at 685.
This was because the respondent used a firearm in committing the offenses for the benefit
of a gang and shot multiple rounds at multip le people on three separate occasions in a
highly populated area. Id. But this court was careful to note that certification is not
automatically required if the first and third fact ors favor certification. Id. at 686. If this
were the case, the statute would have been written differently. Id.
This case is distinguishable from P.C.T. in that here, the third factor—prior record
of delinquency—weighed in favor of EJJ. The state does not cite any case suggesting that
a district court abused its discretion when the two factors that must be weighed most
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heavily are on different sides of the scale. This case also did not involve a gang, a firearm,
multiple victims, or multiple in cidents. The state has not me t its burden in showing that
the district court abused its discretion.
Fourth factor—programming history
The state next argues that the district c ourt abused its discretion in weighing the
fourth factor in favor of EJJ because the dist rict court failed to no te B.C.L.’s two past
diversion programs and his lack of candor about these programs during his evaluations.
The fourth factor considers “the child’s programming history, including the child’s
past willingness to participate meaningfully in available programming.” Minn. Stat.
§ 260B.125, subd. 4(4). This factor “broadly refers to programming history consisting of
a specialized system of services, opportuniti es, or projects designed to meet a relevant
behavioral or social need of the child.” J.H., 844 N.W.2d at 39.
The state is referring to a disclosure by B. C.L.’s mother to Dr. Aiken about two past
diversion programs that B.C.L. took part in. The two incidents leading to the diversion
programs occurred when B.C.L. was 11 or 12 years old. The first was for breaking
someone’s fishing pole, and the second was for sending a naked photograph of himself to
some girls who spread it around. Accordi ng to B.C.L.’s mother, “he was not given
probation or adjudicated delinquent of either incident,” but he “had to remain law abiding
and complete some other conditions of the court,” like a writte n apology. Dr. Aiken still
concluded that the fourth fa ctor supports EJJ, but she did not mention the diversion
programs in her analysis of this factor.
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The state relies on two no nprecedential opinions from this court that mention
diversion programs in analyzing th is factor. The first case is In re Welfare of S.J.R. , in
which we noted the child’s failure to appear for referral to a diversion program. No. A04-
773, 2005 WL 354011 at *2 (Minn. App. Feb. 15, 2005) (“ S.J.R.’s failure to appear for
referral to a diversion program and her failure to comply with the conditions of probation
do not bode well for treatment.”). The second case is In re Welfare of D.S.M. , in which
we, in affirming the district court’s order for EJJ, noted that the district correctly listed the
child’s successful completion of a diversion program in support of the fourth factor
favoring EJJ. No. A03-949, 2004 WL 771680 at *2 (Minn. App. Apr. 13, 2004), review
denied (Minn. June 29 , 2004). Further, D.S.M. was a substantially different case. The
juvenile was appealing the district court’s designation of EJJ, and the state had the burden
of showing that EJJ was appropriate. Id. at *1. We affirmed the EJJ despite the child
having the fourth factor weigh in his favor. Id. at *3.
On appeal, the complaining pa rty must not only show that the district court erred,
but that they were ha rmed by the error. See Hanka v. Pogatchnik, 276 N.W.2d 633, 636
(Minn. 1979). Even if the district court erred by not mentioning these two diversion
programs in its order, the record suggests that B.C.L. successfully completed the diversion
programs both times. A successful completion would weigh in favor of EJJ as it shows his
“past willingness to participate meaningfully in available programming.” See Minn. Stat.
§ 260B.125, subd. 4(4). But even if the pa st diversion programs weighed in favor of
certification, it is unlikely that two divers ion programs from several years earlier would
cause the district court to change the outcome of the factor.
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The state argues that this was a serious erro r because one incident that resulted in
diversion is sexual in nature. But this incident was when B.C.L. was in sixth grade, and it
only loosely relates to the current alleged offense. Because the state has not shown
prejudice, the district court did not abuse its discretion on this factor.
Fifth factor—adequacy of punishment/programming
The state argues that the district court abus ed its discretion in we ighing this factor
in favor of EJJ because it c onsidered the adequacy of puni shment in isolation without
considering the seriousness of the offense. In other words, the state argues that the 54-
months remaining on EJJ “is a woefully inadequate punishment for a first-degree criminal
sexual conduct conviction, particularly in light of the 144-month presumptive sentence and
ten-year mandatory conditional release term” if convicted as an adult.
The fifth factor considers “the adeq uacy of the punishment or programming
available in the juvenile justice system.” Id., subd. 4(5). In weighing this factor, the district
court reviewed the results of multiple testi ng instruments which mo stly indicated that
B.C.L. was a low risk to reo ffend. However, one test indicated a higher risk to reoffend,
and the district court noted that Dr. Aiken reported that the low scores may be due to B.C.L.
asserting his innocence. Dr. Aiken also stated that this denial may mean that B.C.L requires
more than the four and one-half years under EJJ to complete any programming. But the
district court also noted that Jones testified that there wa s sufficient time for B.C.L. to
complete programming. After considering all of this information, the district court found
that this factor favored EJJ.
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The state’s sole argumen t is comparing the presum ptive sentence of adult
prosecution with the four and one-half years remaining under EJJ. A district court may
look at the presumptive adult sentence under the sentencing guidelines in considering the
adequacy of EJJ punishment. See In re Welfare of A.J.F., No. A06-303, 2007 WL 92843
at *4 (Minn. App. Jan. 16, 2007). But this is not the only consideration. Here, the record
shows that the district court considered the available programs and Jones’s opinion that
B.C.L. could complete those programs within the four and one-half years of EJJ. The
district court found Jones credible. See J.H., 844 N.W.2d at 39 (stating that appellate courts
defer to credibility determinations of the district court). Based on this evidence, the district
court found that this factor favored EJJ. While the difference in punishment between adult
sentencing and the length of E JJ is something that a district court may consider, the state
has not shown that the district court abused it s discretion by not considering it, especially
when the decision was sufficiently based on facts in the record.
Sixth factor—dispositional options
Finally, the state argues that the district court abused its di scretion by concluding
that the sixth factor favors EJJ because the “same treatment and dispositional options are
available if B.C.L. were to be certified as an adult,” so this factor should be neutral.
The sixth factor considers “the dispositiona l options available for the child.” Minn.
Stat. § 260B.125, subd. 4(6). The state has not provided, and we cannot find, any support
for its argument that this factor considers whether the adult prosecution system also has
dispositional options. Because this factor considers only whether the juvenile system has
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appropriate dispositional options, the state has not shown that the district court clearly erred
by weighing this factor in favor of EJJ.
Affirmed.