NO. 92-223
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN THE MATTER OF J. A.,
A Youth.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chris J. Nelson, Nelson & Gai, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Patricia J.
Jordan, Assistant Attorney General, Helena, Montana
Christine Cooke, Big Horn County Attorney, Donna K.
Heffington, Deputy County Attorney, Hardin, Montana
Justice Karla M. Gray delivered the Opinion of the Court.
J.A. appeals from an order of the Youth Court transferring
prosecution to the District Court of the Thirteenth Judicial
District, Big Horn County, Montana. We affirm.
The sole issue on appeal is whether the Youth Court erred in
finding probable cause to believe that the alleged offense was
committed in an aggressive manner.
On February 11, 1991, appellant J.A. and three other youths
were at the abandoned sugar factory in Hardin, Montana. J.A. and
his friend Jace Rogers had .22 caliber rifles with them and they
were shooting pigeons and other objects in the building. Neither
Ben Arbogast, J.A.'s cousin, nor Billy Orthman had guns. J.A.'s
weapon was defective: it would discharge even with the safety on.
Billy found a can of peanuts in the building and began eating
the peanuts. J.A. requested the peanuts and moved toward Billy
while carrying the gun. The evidence is conflicting as to
subsequent events, but it is clear that the rifle discharged into
Billy's abdomen. Billy died at Saint Vincent Hospital in Billings
later the same day.
The State of Montana filed a petition alleging that J.A. was
a delinquent youth and that he committed an offense which, if
committed by an adult, would constitute negligent homicide. The
State subsequently moved to transfer the case from Youth Court to
District Court. After a hearing, the Youth Court granted the
motion. J.A. appealed.
Montana's Youth Court Act authorizes the transfer of cases
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from youth court to district court under certain circumstances.
The transfer statute sets forth the criteria which must be met
before a transfer can be ordered: among the required criteria are
certain probable cause findings. Section 41-5-206, MCA. In the
event the statutory requirements are met, the court "may" order the
transfer. u. Thus, in the final analysis, the decision to
transfer is within the court's discretion.
Only one of the requirements of 5 41-5-206, MCA, is at issue
here. Section 41-5-206(1)(d), MCA, requires that the court find
probable cause to believe that "the alleged offense was committed
in an aggressive, violent, or premeditated manner." In this
regard, the Youth Court specifically found as follows in Finding of
Fact 18:
There is probable cause to believe that [J.A.'s]
behavior leading to and including the shooting of Billy
Orthman was aggressive behavior constituting criminal
negligence.
Appellant asserts that the record does not contain sufficient
evidence to support Finding of Fact 18.
Our overall standard of review on appeal of a youth court
order transferring a matter to district court is whether the court
abused its discretion. Matter of K.M.H. (1988), 231 Mont. 180,
183, 752 P.2d 162, 164. This standard is appropriate because, as
discussed above, a transfer under 5 41-5-206, MCA, ultimately is
left to the court's discretion. Heretofore, our standard for
reviewing a court's findings of fact in the context of a § 41-5-
206, MCA, transfer was whether substantial credible evidence
supports the court's findings. K.M.B., 231Mont. at 183, 752 P.2d
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at 164. While we recently have clarified that we will utilize a
clearly erroneous standard in reviewing court findings of fact, the
first prong of the clearly erroneous test remains whether
substantial evidence supports the court's findings. Interstate
Prod. Credit AssIn v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d
1285, 1287.
A review of the record supports the Youth Court's finding of
probable cause to believe that the offense was committed in an
aggressive manner. It is true that Ben Arbogast's testimony at the
transfer hearing does not support the court's finding. At the
hearing, Ben testified that the shooting was an accident; J.A. did
not confront Billy or act in a violent, premeditated or aggressive
manner at the time of the shooting.
However, the record also contains an earlier statement by Ben
to Detective John Shaw of the Big Horn County Sheriff's Department
that is at variance from his testimony at the transfer hearing.
There, Ben stated that J.A. was "acting really reckless" with the
gun as he walked towards Billy immediately prior to the shooting:
the gun was not pointed at the floor, but was pointing straight
ahead. J.A. was angry at the time because Billy would not give him
the peanuts.
In addition, the court heard testimony from Don Miller, a
psychiatric social worker who worked with Ben when he sought
treatment for the stress induced by the shooting incident. Miller
testified as to certain statements Ben made to him, including the
look of sheer hatred on J.A.'s face just seconds before the
shooting and Ben's description of J.A.'s behavior at the time as
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aggressive.
Although the evidence as to whether J.A.'s conduct was
aggressive is contradictory, it is not our function to resolve
conflicts in the evidence. The trial court is in a position
superior to that of this Court in assessing the demeanor and
credibility of witnesses. custody of Helm (1985), 215 Mont. 413,
418, 698 P.2d 414, 417. If sufficient evidence exists to support
the court, we will defer to the court's determination. Mental
Health of R.J.W. (1987), 226 Mont. 419, 423, 736 P.2d 110, 112.
Based on the record before it, the Youth Court entered Finding
of Fact 16, that there is probable cause to believe that J.A.
"confronted" Billy over possession of the can of peanuts. It went
on to find probable cause to believe that J.A.'s behavior leading
to and including the shooting was aggressive. Substantial credible
evidence supports the Youth Court's finding and that finding is not
clearly erroneous.
Appellant contends that the Youth Court failed to "seriously
consider" whether there was evidence to make the finding of
probable cause as required by In re Rodney Dean Stevenson (1975),
167 Mont. 220, 538 P.2d 5. On that basis, and in further reliance
on State v. Rodriguez (1981), 192 Mont. 411, 628 P.2d 280,
appellant asserts that this matter must be remanded to the Youth
Court for further findings. This argument is premised on the
court's failure to recite the testimony on which it relied in
entering Finding 18. Appellant further contends that it is "quite
likely" that the court found that the act was Q& committed in an
aggressive manner, based on its rejection of certain of the State's
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proposed findings of fact.
Nothing in Stevenson or Rodricuez requires the detailed
recitation of the testimony or other evidence on which the Youth
Court's findings are based. Stevenson requires that "all other
factors set forth by statute*' must be carefully considered. 167
Mont. at 229, 538 P.2d at 10. Rodricuez states that "it is
sufficient if the record shows that each factor was seriously
considered." 192 Mont. at 416, 628 P.2d at 283. It is clear that
the Youth Court considered the only statutory factor at issue here,
namely, whether J.A.'s conduct was aggressive; it entered a
specific finding regarding confrontation and a specific finding of
probable cause to believe that the conduct was aggressive.
Furthermore, in light of these findings, appellant's contention
that the court likely found no aggressive conduct is totally
without merit.
Affirmed.
We cnoncur: 1
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