(concurring in part and dissenting in part).
I concur in Part I of the majority’s analysis holding that evidence of nonof-fense related dangerousness is not required for designation of a prosecution as an Extended Jurisdiction Juvenile (EJJ) prosecution on public safety grounds under Minn.Stat. § 260.126 (1998). However, I respectfully dissent from Part II of the majority’s opinion, which concludes that the juvenile court’s findings supporting EJJ designation in this case are not clearly erroneous.
The state has the burden to prove by clear and convincing evidence that an EJJ designation would serve the public safety. See Minn.Stat. § 260.126, subds. 1(3), 2 (1998). In spite of this burden, here, after acknowledging that the six factors of Minn.Stat. § 260.125, subd. 2b (1998) were evenly split, the juvenile court broke the tie and ruled in favor of the state. The court concluded that “[t]he determinative issue ⅜ * * is whether there is sufficient time to treat and monitor Respondent before his 19th birthday.” In finding that the state had met its burden, the juvenile court simply restated and emphasized the fifth factor, “the adequacy of the punishment or programming available in the juvenile justice system,” in order to break the tie. Minn.Stat. § 260.125, subd. 2b(5) (1998). The court thereby improperly gave that factor greater weight than the other factors. See Minn.Stat. § 260.125, subd. 2b (stating that in considering the six factors only “the seriousness of the alleged offense and the child’s prior record of delinquency” shall be given “greater weight”). It was clear error for the juvenile court to reuse this evidence.
Even if the juvenile court considered all factors together in making the public safety determination without subscribing to a strict mathematical formula, the determination here amounts to clear error. Where the factors point equally in favor of and against EJJ designation, reweighing one factor does not help the state meet its burden of proof dictated by the statute, that of clear and convincing evidence. See MinmStat. § 260.126, subd. 2.
In finding that there was not sufficient time to treat respondent, the court relied upon the opinions of the state’s experts, Dr. Bremer and Dr. Reed, finding them more credible than that of the defendant’s expert, Ms. Matthews. Importantly, both the credibility determination and the conclusion regarding the extended amount of time needed for D.M.D.’s treatment were based on the evidence that D.M.D. had refused to acknowledge his conduct in this pre-plea or pretrial context. In fact, the juvenile court found that D.M.D. had “consistently denied” the offense.
However, on cross-examination, Dr. Bremer acknowledged that this denial was on advice of counsel:
Q. The ability of someone to be successful .in sex offender treatment in large measure deals with accepting responsibility; isn’t that correct?
A. That is one component.
Q. And when you had a conversation with [D.M.D.] he did not want to talk with you about the offense, right?
A. Correct.
Q. And he indicated to you that was on advice of me?
A. Yes.
I am concerned about the juvenile court’s reliance on D.M.D.’s refusal to ac*440knowledge his conduct in this proceeding.1 But without deciding the Fifth Amendment issues, it is the juvenile court’s failure to investigate further into the nature of these denials that was clear error. There may be instances where denial or refusal to speak about or acknowledge a crime does not indicate an inability to accept responsibility for one’s actions. The denial or silence may be removed as soon as the proceedings are finalized. Because the evidence reflects that D.M.D. refused to speak about the incident on advice of counsel, the evidence to support the finding that “extensive” treatment would be required “due to * * * Respondent’s denial of the offense,” is not reasonable and the finding is therefore clearly erroneous. See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999) (holding that the absence of reasonable evidence supporting a finding makes that finding clearly erroneous).
I would affirm the decision of the court of appeals; however, I would do so on the grounds stated herein.
. The issues of Fifth Amendment protection for and the admissibility of pretrial statements made to psychiatrists or psychologists during court-ordered examinations have not been decided by this court. See generally Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that statements made to a doctor during pretrial psychiatric examination for the purpose of determining defendant’s competency to stand trial were not admissible during penalty phase of proceedings where defendant was not warned before the examination that he had a right to remain silent and that any statement he made could be used against him at a capital sentencing proceeding). Minnesota Rules of Juvenile Procedure 19.03, subd. 5 states that, "Any matters disclosed by the child to the examiner during the course of the [social, psychiatric, or psychological] study may not be used as evidence or the source of evidence against the child in any subsequent trial.” However, here the statements made or refused to be made to the psychiatrists were not used subsequently but actually used during the designation hearing itself and became the "determinative issue” in the ultimate decision to designate the proceeding EJJ. As a result of this EJJ designation, a 48-month sentence at an adult prison "hangs over [D.M.D.’s] head” until his twenty-first birthday.