Matter of BDC

No. 83-475
IN THE SUPREME COURT OF THE STATE OF MONTANA
1934

IN THE MATTER OF
E.Q.C., A Youth under the
age of Eighteen Years.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
John E. Riddiough, Missoula, Montana
McClain & Dowdall, Missoula, Montana

For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Robert L. Deschamps, 111, County Attorney, Plissoula,
Montana

Submitted on Briefs: February 24, 1984
Decided: July 10, 1984

Filed:
dtr5 \i: !Ygq
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

Defendant youth, R.D.C, appeals from an order denying
his motion to dismiss for lack of jurisdiction the State's
petition for transfer, and from an order allowing transfer to
adult court. On April 11, 1983, the petition was filed in
the Youth Court of Missoula County, alleging that R.D.C. was
a delinquent youth and that he had committed acts which if
committed by an adu1.t would constitute deliberate homicide
under sections 45-5-102(a) and 45-2-302 ( 3 ) , MCA. The State
then moved to transfer the case to adult court under section
41-5-206, MCA.
R.D.C.'s motion to dismiss was denied on grounds that
the application of section 41-5-206, MCA, does not depend. on
whether one is charged directly or through accountability.
The transfer hearing was held on June 2 and 3, 1983, and the
trial court entered findings and conclusions that there was
reason to believe B.D.C. committed the offense, that youth
facilities were inadequate for him and that the crime had
been premeditated.
There are two issues presented by the youth, B.D.C., and
both are jurisdictional under section 41-5-206, MCA. First,
whether the Youth Court had jurisdiction to transfer the case
ci_>
to adult court under section 41-5-206(a), MCA, when R.D.C.
n
wa.s charged with deliberate homicide by accountability.
Second, whether there was substantial evidence to support the
req~ired{~finding of the Youth Court under section
41-5-2,06~g),that the youth facilities are inad-equate for
B.D.C. We reverse and. hold that, although the Youth Court
had jurisdicti.on to transfer the case under section.
 , it did not have jurisdiction under sect.ion
because the Youth Court's required finding under
that section, and other related findings a.nd conclusions,
were not supported by the evidence.
This case involves a stormy relationship between a.

father and son, with a tragic ending. B.D.C. was born in
California and his parents were divorced when he wa.s three
years o1.d. His father moved to Missoula, Montana, and E.D.C.
staye2 i.n California with his mother. When B.D.C. was eight,
his mother died. of cancer. Despite the fact B.D.C. wished to
stay in California with his maternal grandparents, the
California court awarded custody to the father and B.D.C.
went to Missoula with him.
There is substantial evidence to show that B.D.C. 's
father was very hard on him and nothing B.D.C. did was "good
enough." The boy's father was an alcoholic and was often
mentally and physically abusive to B.D.C. while at home. The
boy testified, as did his father's wife, that the boy would
stay in his room so that he would not have to face his
father.
B.D.C. had a close relationship with his grandmother in
California (his grandfather had died one month after his
mother), but because his father would not 1.et him telephone
her, B.D.C. had to use the neighbors' teleph-one. They were
aware of the situation at B.D.C.'s home and gladly allowed
him to use their phone.
From the beginning, B.D.C. had a difficult time dealing
with his father's rejection and the reiection and abuse only
increased during B.D.C1s junior high and high school years.
He tried to participate in sports and other activities to
please his father, but it was to no avail. He testified to
some length about his father's continuous and unreasonable
demands, a.nd about his own frustrations in being unable to
receive his father's love and attention. In seventh grade
when his father blackened his eye, B.D.C. went to the school
counselor for help with his situation. She only told him to
"try harder," advice he considered a "brushoff." He also
went to neighbors and friends, but there was little they
could d.0. The point is that B.D.C. did seek outside help. It
was only after years of rejection and abuse that he wrongly
perceived there was no other alternative but to kill his
father.
During the spring of 1983, when E.D.C.'s was sixteen and
a sophomore in high school, he began talking with a
neighborhood friend about killing his father. The friend
told B.D.C. he would do it, and on or about April 7, 1983,
while R.D.C. waited across the street, the friend shot
B.D.C1s father to death while he slept. Both boys disposed
of the body somewhere outside of town and it was never
recovered.. One or two days later the neighbor boy admitted
the killing to the police, and both boys were arrested.
Both issues presented concern the jurisdiction of the
Youth Court to transfer B.D.C.'s case to adult criminal court
under section 41-5-206, MCA. That section provides in
relevant part:
" (1) After a petition has been filed alleging
delinquency, the court may, upon motion of the
county attorney, before hearing the petition on its
merits, transfer the matter of prosecution to the
district court if:
"(a) the youth charged was 16 yea-rsof age or more
at the time of the conduct alleged to be unlawful
- - unlawful - -
and the act is one or more of the
- - - - -
following:
"(i) criminal homicide - defined - 45-5-101;
- as in
 " (b) a hearing on whether the transfer should be
made is held in conformity with the rules on a
hearing on a petition alleging delinquency, except
that the hearing will be to the youth court without
a jury;
" (c) notice in writing of the time, place and.
purpose of the hearing is given to the youth, his
counsel, and. his parents, guardian, or custodian at
least 10 days before the hearing; a.nd
"(d) the court finds upon the hearing - - of all
relevant evidence that there are reasonable grounds
- believe that:
to
"(i) the youth committed the delinquent act
alleged.;
"(ii) - seriousness - - offense - -
- the of the and the
protection - - community require treatment of
of the
the vouth bevond that afforded bv *,
1 - -
iuvenile -L
i
facilities; and
"(iii) the a.lleged offense was committed in an
aggressive, violent, or premeditated. manner . " . .
The first issue is whether B.D.C. is charged with
criminal homicide as defined in section 45-5-101, MCA.
B.D.C. contends that because he is charged by accounta.bility
--e.g. , he did not pull the trigger--he is not charged "as
defined in 45-5-101." B.D.C.'s challenge on this ground has
no basis in law. B.D.C. seems to be arguing tha.t when one is
charged with an offense by accountability, he or she is being
charged with a separa.te or different offense.
Accountability, however, is merely a conduit by which one is
held criminally accountable for the acts of an.other. There
is no separate offense, only the underlying offense which has
been physically committed by another, but for which the
defendant is equally responsible because of his or her
conspiring or encouraging participation.
B .D .C. is charged by accountability with deliberate
homicide because he and Jim Di.xon conspired. to kill B.D.C. 's
father. Despite the fact tha.t only Dixon pulled the trigger,
B.D.C.'s admission that he helped plan and. facilitate the
killing supplied the trial court with sufficient grounds to
believe B.D.C. committed the act as alleged. If a person has
conspired to commit and facilitated the commission by another
of a criminal. act, he is no less guilty because he did not
"pull the trigger." We hold that, for purposes of transfer
- .

to adult court under section 41-5-20 it makes no
difference whether a youth is charged directly or by
accountability with one of the enumerated offenses in that
section.
The second issue is dispositive. Before a youth court
has jurisdiction to transfer a case to adult court, it must
find that the juvenile facilities are inadequate for the
youth in light of the "seriousness of the offense'' and the
need to protect the community. The Youth Court made the
required finding, but it is not supported by the evidence. In
finding no. 11, the Youth Court found:
"11.. That the staff of the Pine Hills School
recommends that B.D.C. be placed in that facility
for treatment but has declined to make a
recommendation on whether their facilities will be
adequate in view of the seriousness of the offense
and the need for protection of the community."
This finding is puzzling in light of the actual
recommendation from the Pine Hills staff. After the Pine
Hills staff completed. the 45-d.ay evaluation ordered. by the
court, it agreed on a recommendation to the court. In a
letter dated July 17, 1983, Pine Hills Professional
Counseling Service Director, John R. Klaboe, stated:
"To further clarify our position on B.D.C., we feel
that Pine Hills School is the appropriate placement
for this student. We feel that we can help him in
dealing with the problems he is presently having.
We do not, however, feel that the staff of Pine
Hills is capable of making a recommendation in the
ad.ult court versus juvenile court question that
 pertains to the case. We see this as a legal
question, one that is beyond our caps-bilities. "
In a subsequent letter (July 21, 1983) that accompanied the
final report to the Youth Court, Mr. Kl.aboe stated:
"It is recommended that B.D.C. be placed at Pine
Hills School. While at Pine Hills School, he can
be helped to deal with his personal problems,
continue his education and reside in a secure
setting. "
The Youth Court misinterpreted the July 17, 1983 letter
to say that Pine Hills was reserving a recommendation as to
whether their facility was "adequate" for B.D.C. Both
letters make it clear that the Pine Hills staff concluded
their facility is the proper place for him; they only
reserved their recommendation on the ultimate resolution of
the adult versus youth court issue.
The a.dequacy of the youth facility, in light of the
severity of the offense and the need for the protection of
the community, is only one of the factors considered under
section 41-5-206 to determine whether the cause should be
transferred to adult court. The court sent B.D.C. to Pine
Hills so the staff could evaluate him and make a
recommendation as to the adequacy of their facility for him.
The staff found B.D.C. to be a bright and cooperative, though
troubled, youth. He received remarks such a.s "excellent
student," and "very cooperative." One social worker, Donna
Corkins, reported that "(B.D.C.) presents an excellent and
receptive candi.date for therapeutic intervention." In light
of al-1 the circumstances, the staff recommended that R.D.C.
be sent to Pine Hills. Finding no. 11 incorrectly restates
that recommendation and is therefore not supported by a.ny
evidence.
 The cause may not be transferred simply because the
youth is alleged to have committed a serious offense. This
Court so held in the case of In Re Stevenson (1975), 167
Mont. 220, 538 P.2d 5, at 9:
". . . the evidence presented at the transfer
hearing was insufficiekt to waive jurisdiction
because there was no showing that the 'seriousness
of the offense and the protection of the community
requires treatment of the youth beyond tha.t
afforded by juvenile faciliti.es,' as required by
section 10-1229(1) (d)(ii), (now section
41-5-206(1) (d)(ii), MCA) . The State argues the
very nature of the offenses demonstrates the need
for treatment of the youth bevond available
juvenile facilities. We cannot a ; ege. To assume
that iuvenile facilities are inadeauate f- - r o m the4

mere - - -
- fact that the youth - charged - - a serious
is with
offense, completely ignores - rehabilitative
the
DurDose of the Act as set forth in section 10-1202
L - -
(now section 41-5-102, MCA), and is tantamount - -ato
'udicial admission the juvenile facilities in
iontana are inadeauatcto coDe with the hard c o z
.
a L - - - -

youth offender. We - -not - this."
- will - do (Emphasis
.
add-ed )
Because there is no evidence to support the finding that
the youth facility was inadequate, we can on1.y assume the
cause was transferred because the offense is a serious
offense, and wa.s premeditated. But that is insufficient.
Although our holding regarding finding of fact no. 11 is
dispositive, we also hold that finding no. 10 is not
supported by the evidence. The Youth Court entered finding
no. 10 as follows:
l1 [B.D.C. ] appears to be unwilling to accept a.ny
particular responsibility for his actions and does
not appea.r to be disturbed by the killing of his
father or his role in it."
To the contrary, R.D.C. never denied his involvement in
his father 's death. He gave a full confession to
authorities. He acknowledged the moral wrong he committed in
his testimony and expressed regret for the sorrow brought
upon his father's relatives. It is true that B.D.C.
expresses anger towards his father, but he also expresses
fear; fea.r acquired from living in a constant threatening,
punitive, and degrading environment. He stated many times to
the staff at Pine Hills, "If I could only have that day back,
none of this would have happened." There are no reasonable
grounds to support finding no. 10.
Because there was no evidence to support the court's
finding that the juvenile facilities are inadequate for
B.D.C. in light of the seriousness of the offense and the
need to protect the community, we hold that the Youth Court
had no jurisdiction
under section 41-5-206 (
9
A
)
transfer the cause to adult court
(ii), K A .
The cause is reversed and remanded to Youth Court with

We Concur:

Chief Justice \

Justices
 Mr. Justice Fred J. Weber dissents:
I respectfully dissent from the majority opinion which
concludes there was insufficient evidence to support the
youth court's finding that juvenile facilities are inadequate
for B.D.C. in light of the seriousness of the offense and the
need to protect the community. The relevant part of section
41-5-206 ( I ) , MCA provides that a youth court may waive
jurisdiction where:
"(d) The court finds upon the hearing of all
relevant evidence that there are reasonable grounds
to believe that:

" (ii) The seriousness of the offense and the
protection of the community require treatment of
the youth beyond that afforded by juvenile
facilities; " ...
The standard of appellate review of a youth court's
decision to waive jurisdiction is whether there is
substantial credible evidence to support that determination.
I find substantial evidence in the record to support the
conclusion that the seriousness of the offense and the
protection of the community require treatment in this case
beyond that afforded by juvenile facilities.
In a compassionate manner, the majority opinion
emphasizes that the homicide victim was an alcoholic and that
after many years of rejection and some abuse, B.D.C. wrongly
perceived there was no other alternative but to kill his
father. However, that is only a partial statement of the
difficult facts which had to be weighed by the youth court.
The record as a whole indicates that B.D.C. may require
treatment beyond that which is available from Pine Hills.
The confession of J.P.D., the friend who pulled the
trigger, ultimately resulted in the investigation and arrest
of B.D.C. The evidence before the youth court included
confessions by the friend who pulled the trigger and by
R.D.C., describing the extensive plans for the killing, the
killing itself, the disposal of the body, and their
subsequent conduct. The evidence indicates that this killing
was not a crime of passion or an immediate response to any
abusive conduct by the father, but was instead a carefully
calculated elimination of the father.
B.D.C. had discussed the killing of his father with one
friend for a period of approximately two months and had
planned the killing for approximately three weeks with the
friend who pulled the trigger. On the night of the killing,
R.D.C. left his house unlocked so that access could be gained
to his sleeping father. He furnished a large bottle of vodka
to his friend, who consumed about one-fourth of it in order
to have the nerve to complete the act. He also furnished his
own loaded .22 rifle for his friend to use and agreed to pay
$200 for the killing. B.D.C. then kept watch to be sure no
one was coming from approximately 1:00 a.m., when the friend
entered the house, until 3:00 a.m., when his friend returned
from shooting the sleeping man in the temple. The two then
dressed the father's body, dragged it out of the house,
loaded it into the back of a pickup truck and disposed of it.
The boys wore gloves throughout the course of the offense.
Two Montana cases assist in this review. In State v.

Rodriguez (Mont. 1981), 628 P.2d 280, 38 St.Rep. 578F, the
defendant was convicted of deliberate homicide after transfer
from youth court to district court. This Court pointed out
that although the youth court had not made specific findings
of fact regarding the transfer, which is perhaps the
preferable practice, it was sufficient that the record showed
each factor was seriously considered. Rodriquez, 628 P.2d at
 Here, the youth court exceeded that standard. Tt is
clear that all factors set forth in section 41-5-206, MCA
were seriously considered. The court made findings of fact
regarding each factor. In addition, the youth court referred
to and attempted to satisfy standards promulgated by the
United States Supreme Court and the American Law Institute.
In Matter of N.C.F. (1982), 197 Mont. 390, 643 P.2d 236,
this Court held that the youth court did not abuse its
discretion in transferring jurisdiction to the district court
where there was substantial evidence to establish reasonable
grounds to believe the youth had committed the alleged
murder, that the youth requires treatment and the community
requires protection beyond that afforded by juvenile
facilities and that the youth would not be rehabilitated by
the available youth court services and facilities. N.C.F.,
643 P.2d at 239.

This Court emphasized that once a youth turns eighteen,
Pine Hills School begins proceedings to dismiss the youth.
N.C.F., 643 P.2d at 238. The facility is unable to meet the
treatment needs of an eighteen year old, as Pine Hills is
primarily for younger teenagers. N.C.F., 643 P.2d at 239.
These conclusions are consistent with the testimony in this
case of Donald P. Lee, Pine Hills Director of Developmental
Services. Mr. Lee testified that (1) the kind of treatment
that Pine Hills gives "is really short term," the average
length of stay per student being approximately eight months,
and (2) after a student reaches eighteen, "there is not a lot
in terms of treatment . . . that can take place, ...
[Since] most of these kids realize that they're at the end .
. . it's really not too effective in my judgment in terms of

treatment. '
I
 In N.C.F. we noted, "N.C.F. turned eighteen on October
4, 1981. Pine Hills is, for all practical purposes,
unavailable to him." 643 P.2d at 238. Here, we note that
B.D.C. was born February 22, 1967 and is now over seventeen
years old.
Finally, the Court in N.C.F. set forth the standard of
review to be applied when a youth court has granted a
petition to transfer jurisdiction to district court. The
test is whether there is substantial credible evidence to
support the determination of the youth court. 643 P.2d at
239.

Here, twenty witnesses testified in hearings before the
court on three different days. This included testimony by a
psychologist from Pine Hills School. The psychologist
pointed out that it did not make any difference to the Pine
Hills staff whether a youth was committed to Pine Hills by
the youth court or by an adult court. This underscores the
fact that young persons who are convicted of crimes in
district court may be sent to Pine Hills for treatment.
The majority opinion quotes from the letters of J.R.
Klaboe, Chief of Pine Hills Counseling Section, pointing out
that Pine Hills staff members felt they could help B.D.C.
deal with his personal problems, continue his education and
reside in a secure setting, but they could not make a
recommendation on the legal question of which court should
have jurisdiction over B.D.C.'s case. The majority opinion
suggests that the youth court misinterpreted these letters in
finding the facility was inadequate to meet B.D.C.'s
treatment needs. However, it is important to look at a11 of
the materials that Pine Hills furnished to the court. We
will briefly review the significant reports by Pine Hills
personnel.
 The assigned case worker gave a three page report. She
pointed out that often a youth will recount his actions and
show a degree of antagonism, resentment and hostility, which
tend to surface because of the mental frustration of the
vouth. B.D.C. did not demonstrate any of these particular
emotions. He remained calm and reserved, almost as though he
were narrating a story in which he was not involved. She
concluded that B.D.C. must be experiencing a great deal of
unresolved emotional pain, repressed anger, resentment,
antagonism and confusion. She emphasized that if he is ever
to have a semblance of normal life he must, by means of
professional help, purge himself of that pain and anguish.
She coilcluded that B.D.C. would definitely need therapy in
order to make a positive adjustment.
The Pine Hills psychologist gave a detailed eight page
report, which is difficult to summarize. He emphasized that
B.D.C. had felt trapped. He pointed out that B.D.C. did have
some feelings of remorse, but that his concern had to do with
himself and his own future. He had not yet expressed sorrow
over his father's death. The psychol-ogist characterized as a
real problem the fact that B.D.C. did not and could not seek
a solution other than homicide and that he was showing no
coilcern for being the guide in the death of his father. He
was showing nearly complete blandness with a lack of real
remorse.
The testimony of several friends of B.D.C. discloses
that he matter of factly showed the crime scene to them and
seemed very much his normal self at this time. As to
B.D.C.'s reason for killing his father, one friend testified
that the reason seemed to be just the way his dad would
punish him for little things. This friend had suggested to
B.D.C. that he should run away instead of killing his father.
 In his diagnostic perceptions, the psychologist
concluded that B.D.C. had perceived himself as representing
good while his father represented evil, and that R.D.C.
became convinced that good should win out. The psychologist
suggested that B.D.C. had disassociated himself from the
Slather and had repressed what he did because of his belief
that he is good and it was appropriate to kill the father,
who was evil. B.D.C. has neglected to see the similarity
between his actions and the actions of his victim. The
psychologist concluded that when R.D.C. realizes the
similarity, he will need intensive psychological help.
The chaplain's report is also attached as a part of the
forty-five-day evaluation. He expressed great concern
because B.D.C. did not really see anything wrong with
arranging his father's death. Although B.D.C. wished that it
had not happened, he did not feel it was particularly wrong.
The chaplain wondered whether B.D.C. would again use this
method of resolving the situation if he meets a domineering
person in his life. He concluded that B.D.C. 's value system
does not coincide with the standard value system of our
society, and more trouble could follow because of that.
Finally he suggests that adequate intervention would probably
involve long-term therapy in a setting where B.D.C. would be
removed from society until he had worked through his problems
to a point when he would be reasonably safe to have in a.
community.
The youth court pointed out in its findings of fact that
B.D.C. gave a voluntary statement in which he admitted his
involvement in premeditating, aiding and facilitating the
killing of his father. This statement was corroborated by
his friend's confession. The court found that B.D.C. had
been evaluated by several mental health professionals, who
uniformly concluded that he suffers from no psychological
disord-er and that he is competent to stand trial and assist
in his defense.
In finding of fact 10, the court stated that B.D.C.
appeared unwilling to accept any particular responsibility
for his actions and did not appear to be disturbed by the
killing of his father or his role in it. This finding of
fact is supported by the above summarized substantial
credible evidence. The majority opinion finds to the
contrary.
The majority opinion takes particular issue with finding
of fact 11. It seems to me the majority misunderstands that
finding. Pine Hills specifically declined to make a
recommendation on the jurisdictional question of law. The
youth court clearly recognized that Pine Hills was
recommending placement of B.D.C. at that facility. The
majority reasons that because Pine Hills recommended that
B.D.C. be placed there for treatment, the Pine Hills staff
must have concluded that their facility would be adequate to
meet all of B.D.C1s treatment need-s.
The majority fails to address the youth court's
conclusion and the substantial, supporting evidence that the
type of long-term intensive therapy B. D.C. may need exceeds
the short-term care Pine Hills can furnish. When all the
information furnished by Pine Hills is considered together,
it discloses that Pine Hills can properly care for B.D.C. at
this time. However, the individual staff reports and
testimony furnished reasonable grounds for the court to find
tha.t treatment beyond that available at Pine Hills may be
required for B.D.C. and that juvenile facilities are
inadequate in this case.
 It is important to keep in mind that a recommendation by
Pine Hills that B.D.C. be placed there is not inconsistent
with trying B.D.C. as an adult in the district court. As
pointed out by Pine Hills personnel, persons convicted as
adults are sent to Pine Hills for treatment, and treatment
works as effectively for them as others of their age who come
under the Youth Court Act. It is also important to note
that, within the juvenile justice system, a youthful offender
who needs treatment or rehabilitation beyond that which is
available at Pine Hills cannot be transferred to Swan River
Youth Camp. The Director of Institutions may, however,
transfer custody of a youth to and from either facility.
In reaching its conclusion, the ma.jority appears to have
disregarded the evidence that indicates B.D.C. may require
treatment beyond that afforded by the juvenile facilities.
We respectfully suggest that, in its justifiable concern for
the prior mistreatment and future treatment of a sixteen year
old, the majority has failed to apply the substantial
credible evidence rule. Instead, it has become a trier of
fact, choosing the facts which it finds to be most believable
and using the same to form the basis of its opinion.
I would affirm the youth court.