08/31/2023
DA 21-0618
Case Number: DA 21-0618
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 167
STATE OF MONTANA,
Plaintiff and Appellee,
v.
AUSTIN TYLER JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 19-1553
Honorable Rod Souza, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Layla Turman, Kindred Legal, PLLC, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bree Gee, Assistant
Attorney General, Helena, Montana
Scott Twito, Yellowstone County Attorney, Laura Watson, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: June 21, 2023
Decided: August 31, 2023
Filed:
r-6tA•-if
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Austin Johnson (Johnson) appeals the denial of his motion to transfer his case to
Youth Court entered in the Thirteenth Judicial District Court, Yellowstone County. We
reverse.
¶2 We restate the issue on appeal as follows:
Whether the District Court erred by denying Johnson’s request to transfer his
charges to Youth Court.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In December 2019, the State charged Johnson with one count of Sexual Intercourse
without Consent, one count of Sexual Abuse of Children, and one count of Sexual Assault,
all felonies. Pursuant to § 41-5-206(3), MCA, the State filed the information in the District
Court. The charges arose from Johnson’s non-consensual sexual contact with an
eleven-year-old nonverbal autistic girl, C.N, in August 2019. Johnson had C.N. undress,
touched her, digitally penetrated her, and took video and photographs with his cellphone.
Johnson had turned 17 years old one month before the incident, which occurred after C.N.’s
mother left C.N alone with Johnson while she went to the store. When the mother returned,
C.N. was upset, referenced her “pee-pee” and “pictures,” and said she “sucked [Johnson’s]
pee-pee.” C.N.’s mother confronted Johnson and found a video on his cellphone depicting
him “instructing C.N. to spread herself while she was bent over,” and touching her anus
and genitals. During the ensuing investigation, images were recovered from Johnson’s
cellphone depicting Johnson touching C.N.’s breast and C.N. naked on the toilet. A video
2
was also recovered depicting Johnson’s hand on C.N.’s bare buttocks and a video of
Johnson digitally penetrating C.N.
¶4 The District Court held a hearing in June 2020 pursuant to § 41-5-206, MCA, to
determine if the case should be transferred to youth court. Johnson called Chief Juvenile
Probation Officer Tara French (Officer French), Adult Probation Officer Paul Hawkins
(Officer Hawkins), and licensed clinical social worker Michael Sullivan (Sullivan).
Sullivan, who was qualified as an expert witness in the areas of forensic evaluations—
including sexual offender and juvenile risk assessments—is a member of the Montana
Sexual Offender Treatment Association and estimates he has performed roughly 800
psychosexual evaluations for courts. When conducting a psychosexual evaluation,
Sullivan uses several tests which, together, comprehensively assess the “individual
emotionally, behaviorally, psychologically[,] and sexually.” Administered together,
Sullivan testified they provide a “well rounded picture of the subject.” Sullivan evaluated
Johnson over two days and concluded Johnson “has a good understanding of appropriate
and inappropriate sexual behavior.” Johnson “did not present with objective sexual
interests to prepubescent children of either sex” and displayed a “non-deviant profile.”
Sullivan testified that Johnson “scored very low” on his risk of reoffending and opined,
regarding the nature of the offense, that Johnson’s and the community’s needs could be
“adequately addressed through the services provided though Youth Court supervision.”
While acknowledging that the details of the alleged offense “can appear rather egregious,”
Sullivan testified, “I don’t believe there’s really anything about the alleged conduct which
would indicate that he’s not appropriate for Youth Court supervision . . . .” Finally,
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Sullivan testified that it was clear the offense was an “impulsive act” and that the offense
was committed in a very brief period of time. Sullivan testified Johnson struggles in
relationships and does not perceive himself as having a high level of acceptance from
females or socially in general. Sullivan testified that the offense was situational and not
predatory, and that there was no indication of pedophilia or other deviant interests.
¶5 Juvenile Probation Officer French testified that she first met Johnson at his detention
hearing and, at the time of the transfer hearing, had known him for ten months. Prior to
the transfer hearing, Johnson had voluntarily enrolled in sexual offender treatment. French
personally provided Johnson’s pre-trial supervision and indicated that Johnson had no prior
juvenile record. French indicated Johnson lives alone with his mother with whom he gets
along well, and that he is the primary provider of food and transportation because of his
mother’s medical needs. Johnson worked in a nursing home and restaurant and brings in
a large portion of the income for the family. French testified that while on release, Johnson
has been “absolutely” compliant with all conditions and has always asked for permission
before doing things like getting a haircut or going to a job interview. “[I]n the last ten
months there hasn’t been one question of where he’s been . . . .” French testified she has a
specialty caseload consisting of only ten juvenile sex offenders. Also, French explained
that if Johnson had trouble paying for treatment, then Youth Court could pay to ensure he
continues treatment. Johnson opined that a Youth Court transfer would best serve
Johnson’s interests while protecting the community.
¶6 Johnson also called Officer Hawkins from Adult Parole and Probation who testified
that while there are specialty caseloads for sex offenders, the typical caseload is between
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80 and 100 individuals. Moreover, adult probation would likely not pay for treatment, GPS
monitoring, or a drug patch, and that offenders are encouraged to take care of their own
responsibilities.
¶7 The State called Yellowstone County Attorney’s Office victim witness coordinator
Allison VanDyke (VanDyke) but did not otherwise present witness testimony. VanDyke
testified to explain why C.N. and her family were not present at the hearing but did not
comment on the appropriateness of a Youth Court transfer. A second hearing was held in
August 2020 to receive additional information. There, the State conveyed C.N.’s mother’s
opposition to a Youth Court transfer and her belief that Johnson should receive an adult
sentence. Other than presenting testimony that C.N.’s mother objected to a transfer, the
State presented no evidence on the factors relevant to transferring a youth set forth in
§ 41-5-206, MCA.
¶8 The District Court found transferring the case to Youth Court would be in Johnson’s
best interests and would serve the interests of community protection. Regarding
§ 41-5-206(3)(c), MCA—whether “it would be in the best interests of the youth if the
matter was prosecuted in youth court”—the court held:
Financial assistance with sexual offender treatment or monitoring devices
(GPS) could be better facilitated by juvenile probation. If the Defendant was
convicted, a youth court disposition could also be less severe than a sentence
following an adult district court conviction. Finally, registration would be
discretionary with a youth court disposition.
Regarding § 41-5-206(3)(a), MCA—whether “a youth court proceeding and disposition
will serve the interests of community protection”—the court held:
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The Court observes that Officer French who has a caseload of five [to] ten
juvenile sex offenders would supervise the Defendant if the Court granted
transfer. In contrast, if the Court denied transfer, an adult probation and
parole officer with a caseload of around 60 offenders would supervise the
Defendant. Community protection (as well as the Defendant’s best interests)
are served by having a supervising officer who can devote more time and
attention to the Defendant due to having a much smaller caseload.
¶9 However, it concluded based on the Information and affidavit filed in support that
under § 41-5-206(3)(b), MCA—the nature of the offense—the allegations were “serious
and troubling” and that “strongly support[ed] denying Defendant’s motion to transfer.”
Reasoning that § 41-5-206(3), MCA, was in the conjunctive and that Johnson had failed to
meet his burden on subsection (b), the District Court denied Johnson’s transfer motion.
Johnson ultimately pleaded guilty to two amended counts of felony sexual assault. On
each count, the District Court sentenced Johnson to twenty years with fifteen years
suspended, to be run concurrently. The District Court also designated Johnson a Level I
Sexual Offender.
¶10 Johnson timely appeals the denial of his Youth Court transfer request.
STANDARD OF REVIEW
¶11 We review a district court’s decision as to whether a juvenile should be prosecuted
in youth court or in district court for an abuse of discretion. State v. Whiteman, 2005 MT
15, ¶ 10, 325 Mont. 358, 106 P.3d 543. A court abuses its discretion if it acts arbitrarily
without employment of conscientious judgment or exceeds the bounds of reason, resulting
in substantial injustice. State v. Talksabout, 2017 MT 79, ¶ 8, 387 Mont. 166, 392 P.3d
574. We review a district court’s conclusions of law to determine whether its conclusions
are correct. Whiteman, ¶ 10. We review for clear error the specific findings of fact on
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which the district court relied in making its transfer decision. Talksabout, ¶ 8. A finding
is clearly erroneous if it is not supported by substantial evidence, if the district court
misapprehended the effect of the evidence, or if our review of the record convinces us that
the district court made a mistake. Whiteman, ¶ 10. We view the evidence in the light most
favorable to the prevailing party when determining whether a district court’s findings are
supported by substantial credible evidence. Talksabout, ¶ 8.
DISCUSSION
¶12 Section 41-5-206(2), MCA, requires a county attorney to petition for leave to file
an information in district court if a youth was 17 years old at the time of the conduct and
is alleged to have committed one of several enumerated offenses, including sexual assault.
Once leave to file the information is granted, “the district court shall conduct a hearing to
determine whether the matter must be transferred back to the youth court,” unless waived.
Section 41-5-206(3), MCA. The district court may only transfer the case to youth court if
it finds, by a preponderance of the evidence, that:
(a) a youth court proceeding and disposition will serve the interests of
community protection;
(b) the nature of the offense does not warrant prosecution in district court;
and
(c) it would be in the best interests of the youth if the matter was
prosecuted in youth court.
Section 41-5-206(3), MCA. “Each of these factors must be met in order to transfer the
case to youth court.” Talksabout, ¶ 11 (citing § 41-5-206(3), MCA). Generally, in
analyzing these factors, a district court is in the best position to weigh the evidence and
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“resolve[] conflicting evidence before it.” State v. Dietsch, 2013 MT 245, ¶ 16, 371 Mont.
460, 308 P.3d 111.
¶13 On appeal, Johnson notes the District Court found he met his burden of proving a
youth court transfer would serve his interests and the interests of community protection.
He challenges the District Court’s legal conclusion that a youth court transfer could be
denied based solely on the perceived severity of the offense. He contends that the charge
of sexual intercourse without consent will always involve egregious facts; therefore, even
when the interests of a defendant and the interests of community safety support a youth
court proceeding, a similar charge will always be sufficient to deny the transfer. As a
result, Johnson contends the other two factors become meaningless. Finally, Johnson
contends that the District Court failed to distinguish his case from other similar cases before
the Court considering the uncontested evidence. In particular, Johnson noted the court did
not consider how testimony showing his low risk of reoffending, his nonpredatory
motivation, and the witness’s treatment recommendations distinguished his case from
others where the youth was found to present a danger to the community and had higher risk
of reoffending. Instead, he asserts the court only considered the aggravating details of the
offense, giving undue weight to the offense itself.
¶14 We addressed a similar argument in Talksabout, in which the defendant was charged
in district court in two separate cases with sexual intercourse without consent. Talksabout,
¶ 1. In both cases, the defendant was at an underage drinking party and had sexual contact
with underage victims after each said no. At the time of the offense, the defendant was 17
in the first case and 16 during the second, while the victims were respectively 14 and 12.
8
The district court denied the defendant’s transfer request in the first case after finding the
interests of community protection and the nature of the offense warranted district court
prosecution and denied the request in the second case because the defendant failed to show
all three factors. We affirmed both denials on appeal. Talksabout, ¶¶ 1-5, 39.
¶15 As to the first transfer hearing, we explained that the district court did not abuse its
discretion in concluding that the interest of community protection weighed against transfer
because the defendant’s “age, home environment, conduct while on release, minimization
of his alleged conduct, and need for more structured supervision if convicted, make[] the
District Court a more appropriate forum” for supervision. Talksabout, ¶ 21. As to the
nature of the offense factor, the defendant in Talksabout claimed there was no substantial
evidence supporting the district court’s finding and that the district court failed to consider
“mitigating facts” such as his developmental immaturity. Talksabout, ¶¶ 16-18.
¶16 We explained that when analyzing whether the nature of the offense warrants
district court prosecution, a district court “must look to the nature of the allegations—and
not just the seriousness of the offense.” Talksabout, ¶ 20 (citing Whiteman, ¶¶ 13-15,
emphasis in original). We held the district court did not exceed the bounds of reason by
concluding this factor was not met, noting that the defendant “was accused of undressing
and forcibly having sexual intercourse with an intoxicated fourteen-year-old after
repeatedly being told no.” Talksabout, ¶ 21. Talksabout contended that the court failed to
adequately consider Dr. Smelko’s testimony in analyzing the nature of the offense factor.
Talksabout, ¶ 17. We explained that the court did not err in considering attributes of the
offender when evaluating the nature of the offense factor, stating:
9
The evidence strongly indicated that, if convicted, Talksabout would
need sex offender treatment. Talksabout expressed unwillingness to
enter treatment, however, and denied that his conduct ‘sexually offended
against” A.C. Even though he had not yet admitted to the offense,
Talksabout put his evidence before the court through Dr. Smelko, and
the District Court did not clearly err in considering it for purposes of
evaluating the nature of the offense and the interests of community
protection.
Talksabout, ¶ 21 (emphasis added).
¶17 We affirmed the district court’s conclusion that the nature of the offense factor in
the second transfer hearing warranted district court prosecution, noting that the defendant
“knew the victim’s age, removed her clothes, the victim protested, [the defendant]
persisted, and forcibly had sexual intercourse with the 12-year-old victim,” and that this
incident occurred a month before the first assault. Talksabout, ¶ 26. In particular, we noted
the similarity of the two offenses and the evaluating doctor’s new opinion following
additional testing of the defendant that he “was impulsive, could be expected to entertain
potentially dangerous risks to himself and others—including sexual behaviors—and has a
pattern of sexually abusive behavior.” Talksabout, ¶ 29. Although Dr. Smelko’s additional
testing focused entirely on Talksabout’s attributes as an offender, we nonetheless
concluded the evidence informed the court’s consideration of the nature of the offense
factor. We held it provided “additional evidence . . . [that] heightened the District Court’s
concerns and provided further evidence substantiating its findings on those two statutory
factors [nature of the offense and community protection].” Talksabout, ¶ 29 (emphasis
added).
10
¶18 In Talksabout, we also elaborated on when the nature of the offense warranted
district court prosecution by discussing our previous cases analyzing that factor.
Talksabout, ¶ 23 (discussing Whiteman and Dietsch). In Whiteman, we rejected the
defendant’s argument that in its analysis of the nature of the offense factor, the district
court failed to consider evidence of mitigating factors that contradicted the allegations that
the attack was planned. Whiteman, ¶ 13. We found substantial credible evidence supported
district court prosecution, noting testimony from detectives “characterize[ing] the attack as
premeditated and vicious,” and the absence of evidence suggesting the attack was
justifiable or negligent. Whiteman, ¶ 14. We agreed with the district court that “based not
only on the seriousness of the alleged offenses, but also on what appears to be the
premeditated, violent, and deliberate character of the conduct resulting in the alleged
offenses, that the nature of the offenses warrants prosecution in the district court in the
adult system.” Whiteman, ¶ 14. Hence, in Whiteman, we approved of the court’s reliance
on evidence about attributes particular to Whiteman—his lack of impulsivity, the
viciousness of the attack, his deliberation, and the lack of negligence or justification—to
support its conclusion that the nature of the offense warranted prosecution in district court.
Whiteman, ¶ 14.
¶19 Next, in Dietsch, which also involved a sexual offense, we affirmed the district
court’s conclusion that the defendant failed to meet his burden on all three factors. Dietsch,
¶¶ 15-16. As to the nature of the offense factor, we explained that:
The District Court also received testimony at the transfer hearing
concerning the nature of the offense. The District Court heard from a
sexual offender evaluator (Christopher Quigley), a clinical psychologist
11
(Dr. Tessa Reed), and a police detective (Jesse Jessop). The District
Court found more substantive the testimony of the State’s witnesses. The
Court concluded that Dietsch’s contact with the victim’s mother showed
a “high lack of empathy” and that Dietsch had demonstrated a “a highly
significant familiarity about sex with underage girls in his
community.” . . . Sufficient credible evidence supports the District
Court’s finding that the nature of the offense does not warrant a youth
court proceeding and disposition.
Dietsch, ¶ 16. Thus, once again, we observed that evidence of the offender’s attributes
inform the nature of the offense inquiry.
¶20 We noted in Talksabout that, as in Whiteman and Dietsch, “evidence presented to
the District Court regarding the § 41-5-206(3), MCA, factors conflicted.” Talksabout, ¶ 24.
Importantly, the conflicting evidence in Talksabout, Whiteman, and Dietsch included
psychological evidence of the offender’s characteristics and attributes. Thus, while a court
may not be convinced by a defendant’s mitigating evidence, our jurisprudence
undisputedly holds that psychological evidence and other evidence relevant to only the
offender informs consideration of the nature of the offense factor. While this evidence may
be useful in considering what the best interests of the youth are under subsection (c), the
evidence may also inform the nature of the act or offense factor and whether it was the
result of the predatory, deliberate, impulsive, situational, or negligent actions of the
defendant.1 In Talksabout, Whiteman, and Dietsch, psychological evidence of the youth’s
character in the context of the nature of the offense factor reinforced that proceedings in
1
Contrary to the Dissent’s interpretation that factor (c) “requires consideration of the best interests
of the youth . . .,” and that the evidence, accordingly, fits under (c) because it is about the youth,
Dissent, ¶ 11 (emphasis in original), the inquiry under (c) more specifically is a consideration of
the best interests of the youth, which clearly focuses on the youth’s welfare and not attributes of
the youth that our case law has held informs the nature of the act or offense committed.
12
adult court were appropriate. It would be unjust to conclude, as the Dissent does, that the
same type of evidence cannot be considered to support a finding and conclusion that the
nature of the offense factor warrants proceedings in Youth Court.
¶21 Significantly, our jurisprudence, consistent with the United States Supreme Court,
has held that “juveniles are ‘constitutionally different from adults in their level of
culpability . . . .’” State v. Keefe, 2021 MT 8, ¶ 13, 403 Mont. 1, 478 P.3d 830, quoting
Montgomery v. Louisiana, 577 U.S. 190, 213, 136 S. Ct. 718, 736 (2012). These
differences result from children’s “diminished culpability and greater prospects for
reform,” and are apparent in three primary ways:
First, children have a lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and heedless risk-taking.
Second, children are more vulnerable . . . to negative influences and outside
pressures, including from their family and peers; they have limited control
over their own environment and lack the ability to extricate themselves from
horrific, crime-producing settings. And third, a child’s character is not as
well formed as an adult’s; his traits are less fixed and his actions less likely
to be evidence of irretrievable depravity.
Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012) (quoting Roper v.
Simmons, 543 U.S. 551, 569-570, 125 S. Ct 1183, 1195 (2005) (citations omitted)).
See also Steilman v. Michael, 2017 MT 310, 389 Mont. 512, 407 P.3d 313.
¶22 While Keefe and Steilman dealt with the propriety of sentencing youths to life
without parole, the collective thrust of their teachings and of Supreme Court jurisprudence
(Montgomery, Miller, Roper, and Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010)
(banned life without parole for juveniles who committed a nonhomicide crime)) firmly
13
establishes that youths are constitutionally different from adults and, therefore, the
characteristics of youth cannot be ignored during a youth’s prosecution.
¶23 The very essence of a transfer hearing involves a decision of whether a youth should
be prosecuted as an adult. In other words, recognizing under our precedent that a youth is
constitutionally different from an adult, should the youth nonetheless remain in district
court where he or she will be prosecuted and sentenced as an adult. Although the
Legislature has set forth three factors to guide courts in their decisions, nothing in the plain
language of the statute prevents a court from considering the youthfulness of the offender
under any factor, nor does § 41-5-206(3), MCA, require courts to ignore well-established
precedent mandating that youths be treated differently from adults. The Youth Court Act
lists nearly two dozen felonies requiring an information be filed directly in district court
for youths who are at least 16 years of age at the time of the offense. These offenses are
the most serious offenses under Montana law and, absent consideration of the youth’s
individual characteristics and transient immaturity, will frequently dictate that the nature
of the offense is serious and that factor (b) cannot be met. Because the Legislature has
designated those offenders charged with these specific crimes be first treated as adults—
even though they are youths—a major consideration under our precedent for transferring a
case from adult court to youth court must be the extent to which the offense reflects the
offender’s youthfulness. An offender’s youthfulness, social maturity, impulsivity, brain
development, and other measures of maturity is an important, indeed vital, consideration
in a transfer decision.
14
¶24 Montana courts have consistently considered evidence of all these attributes when
making transfer decisions. Clearly, the Legislature has mandated that before a case can be
transferred, the court must make findings and conclusions that the interests of the
community will be protected, the nature of the offense does not warrant prosecution in
adult court, and that it would be in the best interests of the youth to be in Youth Court.
Section 41-5-206(3)(b), MCA. Equally clear, however, is that the Legislature did not
mandate the type of evidence a court may consider when evaluating each factor. Nothing
in the statutory language of factor (b), concerning the nature of the offense inquiry,
precludes consideration by the court of whether the act reflects impulsivity, youthful
immaturity, or situational opportunity. Nor has the Legislature precluded any such
consideration anywhere else in § 41-5-206(3)(b), MCA. And to read such a restriction into
the statutory language would be inconsistent with our case law. “In the construction of a
statute, the office of the judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
inserted.” Section 1-2-101, MCA. Rather, the evidence presented as to each factor must
be weighed and considered by the court and must support the court’s conclusion under each
factor by a preponderance for a transfer to occur. The Legislature has set forth the criteria
for transfer, but it’s the court’s role to evaluate and decide the credibility of the evidence
presented. Nothing in the statute hamstrings the court’s analysis or dictates what evidence
may be presented and considered for any particular factor. Accordingly, when a district
court examines whether the “nature of the offense does not warrant prosecution in district
court” § 41-5-206(3)(b), MCA, the district court is not required to chuck Montana
15
precedent or precedent of the Supreme Court explaining youth are “constitutionally
different,” rather the court must consider the extent the offender’s transient immaturity
informs each factor–including the nature of the offense factor. Particularly elucidating of
an offender’s transient immaturity are psychosexual evaluations prepared by expert
witnesses.
¶25 Here, the record demonstrates the court did not adequately consider any of the
evidence presented by Sullivan as applied to the nature of the offense factor. This evidence
included Johnson’s youthfulness; impulsivity; that the offense was not predatory but
situational; that Johnson has a low risk of reoffending; and that Johnson was socially
immature and felt he was not accepted by females. Unlike the conflicting evidence
presented in Talksabout, Whiteman, and Dietsch, there was no conflicting evidence
presented here on any of the factors, let alone the nature of the offense factor. The District
Court relied solely on the seriousness of the offense, conflating it with the nature of the
offense, and did not consider how other evidence of Johnson’s attributes or characteristics
informed the nature of the offense. Whereas in Whiteman, we specifically noted the
absence of any mitigating facts or evidence suggesting the attack was anything other than
deliberate, Johnson presented evidence from Sullivan that the nature of the offense arose
from Johnsons’ impulsivity and was situational. Whiteman, ¶ 14. The State’s only rebuttal
to this evidence was to offer to the court that the facts of the offense alone justified district
court prosecution, stating,
The nature of the offense would lend itself to the—this was a pretty abhorrent
allegation against the youth, so I think it would—I guess I’d be remiss in making
any other argument and indicating, the Court does have to find all three of those in
16
order to return it to Youth Court by a preponderance. The State’s position was it
was a direct file due to his age and the nature of the offense. So I would leave it
with that, Your Honor.
¶26 Whereas in Dietsch, the defendant lacked empathy, was familiar with sex with
underage girls, and was likely to reoffend regardless of where the charges were brought,
here Johnson presented Sullivan’s testimony that Johnson had “a good understanding of
appropriate and inappropriate sexual behavior,” he “did not present with objective sexual
interests to prepubescent children of either sex,” he “displayed a non-deviant profile,” was
a low risk to reoffend, the offense was situational rather than predatory, and Johnson’s
conduct resulted from his history of impulsivity and lack of social acceptance. Dietsch,
¶¶ 14, 16. Further, Sullivan explained that while the facts of the offense were egregious,
he did not believe “anything about the alleged conduct . . . would indicate [Johnson is] not
an appropriate candidate for Youth Court supervision,” and that Johnson could complete
treatment before the age of 21. Finally, in Talksabout, the district court rejected the
defendant’s mitigating facts, finding they suggested the victim’s responsibility for the
offense, and noted the defendant’s unwillingness to enter treatment. Talksabout, ¶ 21. In
contrast, the District Court made no similar findings regarding Johnson’s mitigating
evidence, and Johnson voluntarily underwent sex offender treatment prior to the transfer
hearing and was on track to complete it before the age of 21.
¶27 Further, unlike Talksabout, Whiteman, and Dietsch, where the defendants failed to
meet their burden on two or more factors, the District Court here denied Johnson’s transfer
request based solely on the nature of the offense factor. It is undisputed that the court
concluded transferring Johnson’s case to Youth Court would be in his best interest and the
17
interest of community protection. The court recognized Officer French’s testimony that
juvenile probation has greater financial resources for supervision and due to a lower
caseload, is better positioned to supervise individuals than adult probation officers. It also
recognized Officer French’s testimony that Johnson was fully compliant with her
directions, was a minimal risk to the community, and a transfer would best serve his
interests while protecting the community.
¶28 While § 41-5-206(3), MCA, clearly provides that a district court may not transfer a
proceeding to youth court unless it finds the nature of the offense does not warrant
prosecution in district court, this Court must nonetheless conduct its appellate review of
the district court’s findings for clear error. A finding is clearly erroneous if not supported
by substantial evidence, if the district court misapprehended the effect of the evidence, or
if our review of the record convinces us that the district court made a mistake. Talksabout,
¶ 8. We are convinced, based on our review of the record, that the District Court not only
made a mistake but misapprehended the evidence presented by Johnson suggesting that the
nature of the offense did not warrant district court prosecution, instead reaching its
conclusion as to this factor based purely on the egregious facts of the offense—an offense
which will virtually always, absent mitigating evidence, contain particularly egregious
facts warranting district court prosecution. By failing to consider Johnson’s mitigating and
unrebutted evidence as to this factor, the District Court abused its discretion.
CONCLUSION
¶29 The District Court’s decision denying Johnson’s motion to transfer to Youth Court
is reversed. This matter is remanded to Youth Court for prosecution and disposition.
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/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
Justice Jim Rice, dissenting.
¶30 I believe our recent cases have failed to properly incorporate or emphasize the
changes made by the Legislature to the transfer process, primarily by our repetition of
generalized standards of review that do not reflect those nuances. That has led, in my view,
to improper analyses under the statute, including the weighing or balancing of the statutory
factors. See Opinion, ¶ 27. It has also led to elongated opinions that stray from the
necessarily narrow inquiry the Legislature has established for this determination.
See Opinion, ¶¶ 16-20.
¶31 Under the prior statutory scheme, all juvenile proceedings began in youth court.
Provision was made for transfer of a youth case to district court upon satisfaction of certain
conditions, but even then, the statute merely provided that the court “may” order the
transfer, placing the ultimate decision completely within the discretion of the court:
Montana’s Youth Court Act authorizes the transfer of cases 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 . . . . Section
41-5-206, MCA. In the event the statutory requirements are met, the court
“may” order the transfer. Id. Thus, in the final analysis, the decision to
transfer is within the court’s discretion.
19
In re J.A., 255 Mont. 214, 215, 841 P.2d 1130, 1131 (1992). (Emphasis added.)
Consequently, an abuse of discretion standard of review was “appropriate because, as
discussed above, a transfer under Sec. 41-5-206, MCA, ultimately is left to the court’s
discretion.” In re J.A., 255 Mont. at 215-16, 841 P.2d at 1131.
¶32 In In re T.N., 267 Mont. 81, 881 P.2d 1329 (1994), applying the 1993 version of
§ 41-5-206, MCA, which continued to employ the “may” discretionary language, we
further clarified the standard of review by holding that “[t]his court will not find abuse of
discretion where there is substantial evidence to support the findings of the youth court.”
In re T.N., 267 Mont. at 84, 881 P.2d at 1332. Accordingly, a transfer decision premised
upon correct factual findings of the statutory factors—whether granting or denying
transfer—could not otherwise be challenged as an abuse of discretion. See also In re
J.K.C., 270 Mont. 342, 891 P.2d 1169, 1171 (1995) (“This Court will not find an abuse of
discretion where there is substantial credible evidence to support the findings of the youth
court.”).
¶33 In succeeding years, the Legislature enacted extensive legislation to address serious
crimes committed by juvenile offenders,1 which significantly altered the law governing the
relationship between youth and adult courts, including requiring prosecutors to seek leave
to file directly into district court for certain offenses without first filing in youth court, and
granting prosecutors the option of filing directly into district court on other offenses.
1
Specifically, The Extended Jurisdiction Prosecution Act, Chap. 438, Laws of Montana 1995; The
Montana Street Terrorism Enforcement and Prevention Act, Chap. 285, Laws of Montana 1997;
and An Act Generally Revising the Youth Court Act, Chap. 550, Laws of Montana 1997.
20
See, generally, Chap. 550, Laws of Montana 1997. Correspondingly, the Legislature
reversed the transfer process, providing for transfer of a case first filed in adult court back
to youth court, upon certain statutory factors.2 Critical here, the Legislature also
completely revised the discretion that may be exercised by the courts in transfer decisions.
First, the Legislature repealed the “may” language within § 41-5-206, MCA, upon which
the Court had premised its multiple holdings that transfer decisions ultimately fell within
the discretion of the court. See Sec. 18, Chap. 550, Laws of Montana 1997. Second, the
Legislature adopted contrasting language that expressly limited the court’s exercise of
discretion, and tied the decision to factual findings, which language remains in effect
today.3
The district court may not transfer the case back to the youth court unless the
district court finds, by a preponderance of the evidence, that:
(a) a youth court proceeding and disposition will serve the interests of the
community protection;
(b) the nature of the offense does not warrant prosecution in district court;
and
(c) it would be in the best interests of the youth if the matter was prosecuted
in youth court.
Section 41-5-206(3), MCA (2019) (emphasis added); see also State v. Whiteman, 2005 MT
15, ¶ 11, 325 Mont. 358, 106 P.3d 543.
2
The Legislature also modified the statutory factors from prior law. See Sec. 18, Chap. 550, Laws
of Montana 1997.
3
The 2019 version of § 41-5-206, MCA, is at issue here; the 2021 version is unchanged.
21
¶34 Our transfer cases often recite a standard to the effect that “we review for abuse of
discretion a district court’s decision whether to transfer to youth court a juvenile case
charged in district court.” State v. Talksabout, 2017 MT 79, ¶ 8, 387 Mont. 166, 392 P.3d
574; Opinion, ¶ 7. This oft-cited general standard is correct only in a narrow sense, and
largely fails to capture the restrictions the Legislature has placed upon the court’s exercise
of discretion. Transfer is no longer a generic discretionary decision by the district court
that this Court reviews for abuse of discretion. Rather, the Legislature has anchored the
transfer decision to requisite factual findings: “[t]he district court may not transfer the case
back to youth court unless the district court finds, by a preponderance of the evidence,”
the three stated factors. (Emphasis added.) Indeed, the Legislature has now essentially
adopted this Court’s prior law framework for transfer decisions—if there is substantial
evidence to support a district court’s findings, then there can be no abuse of discretion, see
In re T.N., 267 Mont. at 84, 881 P.2d at 1332—but also narrowed the grounds upon which
transfer can be granted. The statute no longer accommodates discretionary reasoning that
would rely upon a weighing or balancing or other consideration of the statutory factors.
Further, all three factors must be factually found in favor of transfer before transfer is
authorized. Talksabout, ¶ 11; Opinion, ¶ 8. If any one factor is not factually found by a
preponderance of the evidence, transfer cannot be ordered.
¶35 Here, the District Court found by a preponderance of the evidence that factors (a)
and (c) were established—that a youth court proceeding would serve the interests of
community protection and that it would be in Johnson’s best interests if the matter was
prosecuted in youth court. While this may appear to be a sound basis for transfer to youth
22
court, the law does not permit the inquiry to stop there. Transfer can only be ordered if the
District Court also factually found, by a preponderance of the evidence, that “the nature of
the offense does not warrant prosecution in the District Court.” Section 41-5-206(3)(b),
MCA (emphasis added); see State v. Dietsch, 2013 MT 245, ¶ 19, 371 Mont. 460, 308 P.3d
111 (denial of transfer upheld where “[s]ufficient credible evidence supports the District
Court’s finding that the nature of the offense does not warrant a youth court proceeding
and disposition”).
¶36 In many cases, this particular factual issue—centered on the nature of the offense—
may be a relatively straight-forward determination drawn from the self-evident nature of
serious allegations brought against the youth upon probable cause, such that a district court
would have little or no basis on which to find that the nature of the offense “does not
warrant” prosecution in adult court. In other cases, there may be mitigating circumstances
upon which a district court could find the nature of the offense did not require an adult
proceeding. But the critical analytical point is that the statutory factor is stated in the
negative: to authorize transfer, the District Court must find, by a preponderance of the
evidence, that the nature of the offense does not warrant prosecution in adult court. Here,
the District Court could not so find:
[T]he Court cannot conclude ‘the nature of the offense does not warrant
prosecution in district court.’ Mont. Code Ann. § 41-5-206(3)(b).
Talksabout, 2017 MT 79 at ¶ 20. The serious and troubling allegations in
this case strongly support denying the Defendant’s motion to transfer . . .
[T]he alleged victim was 11 at the time of the offenses. Thus, she was a year
younger than the younger victim in Talksabout. Also, as recounted supra,
the alleged victim is severely autistic, and the Defendant knew of this before
the offenses allegedly occurred. The alleged victim’s vulnerability (that the
Defendant had knowledge of) is extremely aggravating.
23
Not only did the Defendant allegedly sexual[ly] assault and digitally
penetrate the victim, as recounted more fully supra, but also he recorded
himself doing so as photos and videos of these events exist. Moreover, as
recounted supra, the severely autistic eleven-year-old stated she performed
oral sex on the Defendant.
(Emphasis added.) If not clearly erroneous, this factual finding—that the nature of the
offense does indeed warrant prosecution in adult court—is sufficient of itself to bar transfer
to youth court by operation of the statute.
¶37 The Court concludes the District Court’s finding under factor (b) is not supported
by the record. Opinion, ¶ 28. To do so requires the implication that the finding is clearly
erroneous after a review of the entire record in deference to the prevailing party. I would
conclude the finding is not clearly erroneous. The serious nature of the crime is self-evident
and the allegations were supported by probable cause, as reflected in the record. The
District Court found no mitigating circumstances that would allow it to conclude that the
offense would not warrant prosecution in adult court. To the contrary, it clearly would;
more than being unable to find the case did not warrant prosecution in adult court, the
District Court found the case “strongly support[ed]” it. (Emphasis added.)
¶38 It should be remembered that this is a decision to be made by the district court upon
its factual findings. “The trier of fact resolves conflicts in the evidence before it, and this
Court will not reevaluate this same evidence on appeal. Despite the testimony of three of
Whiteman’s teachers describing him as intelligent and respectful and a psychologist who
believed Whiteman just needed more structure, sufficient credible evidence supports the
District Court’s findings. . . .” Whiteman, ¶ 19. (Emphasis added.) (Internal citations
omitted.)
24
¶39 To address these determinative principles under current law, the Court adopts new
“guiding criteria” to be applied in transfer decisions, reasoning that, without such, “serious
offenses . . . will frequently dictate that the nature of the offense is serious and thus justify
a proceeding in adult court.” Opinion, ¶ 24. The Court holds that “a major consideration
for transferring a case from adult court to youth court must be the extent to which the
offense reflects the offender’s youthfulness. Youth is a distinguishing feature and an
offender’s youthfulness, social maturity, impulsivity, brain development, and other
measures of maturity is an important, indeed vital, consideration in a transfer decision.”
Opinion, ¶ 24. (Emphasis in original.) The Court thus requires these considerations to be
integrated in the statutory assessment of the nature of the offense under factor (b). Opinion,
¶ 24. These new requirements are erroneous for several reasons.
¶40 First, they plainly contradict the explicit language and structure of § 41-5-206(3),
MCA. The Legislature has carefully designed a three-factor inquiry for transfer decisions,
under which transfer can be barred upon failure to find any one of the three factors. Under
factor (a) of the statute, the Legislature requires consideration of the interests of the
community; under factor (b), the Legislature requires consideration of the nature of the
offense; and under factor (c), the Legislature requires consideration of the best interests of
the youth. The new mandates the Court is inserting into the factor (b) consideration of the
nature of the offense are not about the offense at all, but about the youth. While the Court’s
new mandates could conceivably be considered under the factor (c) assessment of the
youth, forcing such considerations into the separate factor (b) assessment of the offense is
inimical to the independent determinations required by the Legislature. Further in this
25
regard, the Court’s reasoning undermines the Legislature’s intention regarding nature of
the offense by holding that “seriousness of the offense” should be not conflated with the
“nature of the offense.” Opinion, ¶ 24. However, the seriousness of an offense is an
element of its nature, perhaps the more fundamental and important one. These are not
mutually exclusive, and should be considered together.
¶41 And, with all due respect, this is pure legislating in violation of the separation of
powers, as evident from the Court’s own reasoning. The Court is unhappy that the statutory
factors designed by the Legislature will too “frequently dictate . . . a proceeding in adult
court.” Opinion, ¶ 24. Consequently, the Court is imposing its own mandates to alter the
effect of the Legislature’s design. Without question, the Court’s mandates will not only
broaden the inquiry under the statute, but also change the statute’s intended results,
requiring a broader set of cases to be transferred to youth court in contradiction with the
Legislature’s intent to narrow the set of cases that are to be transferred, as established under
the statute’s plain language and by the above discussion of the legislative history of
§ 41-5-206(3), MCA. It is the Court’s duty to apply the statute as written, not to recast it
for a more favorable policy outcome.
¶42 I would affirm.
/S/ JIM RICE
Justice Beth Baker joins the Dissent of Justice Rice.
/S/ BETH BAKER
26