Opinion
No. 1-917 / 01-0570.
Filed April 24, 2002.
Appeal from the Iowa District Court for Woodbury County, RICHARD VIPOND, Judge.
On discretionary review, the State contends the district court abused its discretion in granting Richard Hoyt's motion to transfer jurisdiction to the juvenile court. AFFIRMED.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General Thomas S. Mullin, County Attorney, and James Drury, II, Assistant County Attorney, for appellant.
Linda Del Gallo, State Appellate Defender, David Arthur Adams, Assistant Appellate Defender, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Our supreme court granted the State's application for discretionary review of the trial court's ruling transferring jurisdiction of this matter to the juvenile court. We find no abuse of discretion and therefore affirm.
I. Background Facts and Proceedings.
Based on allegations that sixteen-year-old Richard Hoyt videotaped himself while engaging in sex acts with a four-month-old girl whom he had been baby sitting, the State charged Hoyt with four counts of second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.3(2) (1999). Because Hoyt was sixteen years old and was charged with forcible felonies, prosecution of the alleged crime was instituted in the district court. See Iowa Code § 232.8(1)(c). Hoyt subsequently applied for transfer to the juvenile court. Following a hearing, the district court granted the motion and transferred Hoyt's case to juvenile court. The State applied for, and was granted, discretionary review of this ruling.
The State contends the district court improperly placed on it the burden to show why the criminal court should retain jurisdiction, rather then requiring Hoyt to show good cause for waiver to the juvenile court. The State also asserts the court abused its discretion in failing to fully consider or adequately weigh the factors outlined in Chapter 232.
II. Standard of Review.
We review the district court's allocation of the burden of proof for errors at law. State v. Terry, 596 N.W.2d 364, 366 (Iowa 1997). We review for abuse of discretion the district court's ruling transferring jurisdiction to the juvenile court. In re J.J.A., 580 N.W.2d 731, 740 (Iowa 1998) (addressing a motion to waive jurisdiction from juvenile to district court).
III. Burden of Proof.
We conclude the State has failed to preserve for our review its contention that by requiring the State to present its evidence first, the court shifted to the State the burden of proof on this matter. We believe it was incumbent upon the State to object to it at trial. See State v. McCright, 569 N.W.2d 605, 607 (1997) (stating issues not raised before the district court cannot be raised for the first time on appeal).
IV. Transfer to Juvenile Court.
Iowa Code section 232.8(1)(c) provides that violations by a child, age sixteen or older, which constitute a forcible felony are excluded from the jurisdiction of the juvenile court, "unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause." Iowa Code § 232.8(1)(c). Section 803.6(3) provides that the court may transfer jurisdiction to the juvenile court if it determines waiver to the criminal court would be inappropriate under the criteria set forth in section 232.45(6)(c) and (8). This is commonly referred to as a "reverse waiver." See Terry, 596 N.W.2d at 366. The provisions of section 232.45(8) instruct the court to consider such factors as (1) the nature of the act and its circumstances, (2) the child's prior involvement with the juvenile authorities, (3) past efforts to rehabilitate, and (4) the programs and facilities available for rehabilitation and treatment in the adult system. Section 232.45(6)(c), which involves waiver in the other direction, that is from juvenile to adult court, places the burden on the State to establish there are no reasonable prospects for rehabilitating the child if the juvenile court retains jurisdiction.
We conclude the district court did not abuse its discretion in transferring jurisdiction to the juvenile court. A review of the record shows the district court was presented with, and considered, several of the statutory factors in making its determination. The court clearly considered the nature of the act. In that respect it noted that although the State charged Hoyt with four separate class "B" felonies, the case really only "involves one incident and one victim." Hoyt presented evidence that he had never been under the jurisdiction of the juvenile court before. See Iowa Code § 232.45(8)(b) (directing the court to consider the nature and extent of the child's prior contacts with juvenile authorities). Hoyt's mother testified that if jurisdiction would be transferred to the juvenile court, she would be willing to facilitate the treatment process.
The district court noted the State charged Hoyt with "as many charges as it could possibly think up." The State asserts the court's comment unfairly characterized its exercise of prosecutorial discretion. We disagree and view the court's observation as an appropriate effort to assess the nature and extent of the alleged delinquent's behavior and the circumstances under which it occurred. See Iowa Code § 232.45(8)(a).
At the hearing on Hoyt's motion, the State called Martin Appelt of the Third Judicial District Juvenile Court Services as a witness. Although he recommended that the district court retain jurisdiction, he also detailed at least three treatment options that would be available to sex offenders in the juvenile system. First, he mentioned the Grayhill Academy, a facility located in Woodbury County that treats young people who have severe behavior problems. Second, Appelt discussed inpatient and outpatient treatment modalities which include close supervision following the release from treatment. Third, he noted the option of a seven-month stay at the State Training School at Eldora. The court was not bound to accept Appelt's opinion that the treatment options within the juvenile system were inadequate to accomplish rehabilitation during Hoyt's minority. See Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974) (noting the jury is free to accept or reject expert testimony in whole or in part). The record clearly reflects the district court considered the treatment and rehabilitation alternatives offered by the adult correctional system to a juvenile convicted of a forcible felony. Thus, we conclude the court was presented with, and obviously considered, evidence relevant to the question of whether there existed reasonable prospects for rehabilitating Hoyt in the juvenile court system. See Iowa Code § 232.45(6)(c).
We acknowledge Hoyt's contention that the duration of treatment offered to him within the juvenile system is not circumscribed by the duration of his minority. See Iowa Code § 232.53(2) (allowing the juvenile court to maintain jurisdiction until the child reaches nineteen and one-half years old in certain situations).
The district court clearly considered and rejected the prospect of sending Hoyt, a juvenile, to prison for more than twenty years under the forcible felony sentencing provisions. See Iowa Code §§ 902.9, 902.12.
V. Conclusion.
We conclude the district court considered the appropriate factors and did not abuse its discretion. Accordingly, we affirm.
AFFIRMED.
MAHAN and HECHT, JJ. concur; SACKETT, C.J., concurs in part and dissents in part.
I concur in part and dissent in part.
The majority contends error was not preserved on the State's challenge to the burden of proof adopted by the district court because the State did not object at the hearing to the State proceeding first. The record does show that the district court said to the State it should start and the State did so without objection. I do not understand the State's challenge to be to the fact that they were told to proceed first with their evidence. Rather, I understand the State's contention to be that the district court applied the incorrect burden in its ruling. I find this error preserved for review. I agree with the State that the burden of proof is on the juvenile to show he or she does not belong in the criminal court. State v. Terry, 569 N.W.2d 364, 367 (Iowa 1997). Having said that, I fail to find the district court incorrectly established the burden of proof on the State. Consequently, I too would affirm the district court on the State's first issue.
The State next contends that the district court abused its discretion in not correctly considering and weighing the factors to be considered under Iowa Code chapter 232 in deciding whether a transfer should be granted. Defendant had trouble while living with his mother. As a result he was taken into the home where the four-month-old girl he is alleged to have molested lived part-time with her father and grandparents. The child also child lived part-time with her mother.
Defendant, left by the child's father to care for her, according to the State's allegations, used a video camera to film the child's genitalia. He continued filming during which time he digitally manipulated the child's vagina; put his fingers, thumbs and tongue in her vagina, had oral sex with her, and masturbated above her. The taping lasted about five minutes. The parents of the child did not notice any physical evidence of defendant's acts. Defendant was discovered because the child's father found and played the videotape. The defendant, when questioned, admitted the acts. He said he did it for a cheap thrill and he had videotaped himself masturbating in the past and he watches it. He further said he had planned on watching this video and masturbating to it.
At the hearing on the defendant's motion to transfer, the State presented the testimony of the juvenile officer who prepared and presented a transfer report recommending the defendant not be transferred back to juvenile court. The officer said there was not adequate time to deal with defendant's problems before the juvenile court would lose jurisdiction of the defendant because of his age. He said the second factor in his decision was that the defendant had a complicated history and is a complicated person and it is important he be given a real opportunity for rehabilitation that would not be available if he were transferred to juvenile court. On cross-examination the officer admitted there are programs available for sexual offenders through the juvenile court. However, the officer's report clearly indicates the juvenile court is unable to keep defendant for an adequate time to complete treatment and to do so would leave defendant unreasonably and potentially dangerous both to himself and the community.
The defendant's mother testified her son was an honor student and that she would help him if he were released. However, defendant left home because of serious conflict he had with his mother.
After taking the evidence the district court made extensive verbal findings. The court first recognized the section 232.45 factors set forth in the majority opinion. The district court went on to note that four charges were filed even though the case involved one incident and one victim. The court recognized the problems the juvenile court has when the proceedings cannot continue beyond a juvenile defendant's eighteenth birthday. The court also recognized there are a fair number of programs and alternatives for a sixteen-year-old offender. The court was unsure of whether the provisions of Iowa Code section 229A might apply here. The court said the consideration which made the greatest impression on him here is the "complete lack of alternatives which are available in adult court." The court went on to discuss that if convicted it is mandatory that defendant serve a twenty-five year prison term and he could not be released until he served eighty-five percent of his term or an absolute minimum of twenty-one and one-fourth years, requiring him to stay in prison until he was thirty-seven or thirty-eight years old. The court noted this is what would happen unless the prosecutor dropped these charges and filed a different charge, which the court did not find to be likely. The district court judge then went on to comment:
In view of the fact that the State has filed as many charges as it could possibly think up in this case, that does not seem likely and, in any event, it is not proper for the court to avoid its responsibility and place the defendant at the mercy of the attorney on the other side of the case.
This is a situation in which the Iowa statutory scheme really does not provide any adequate solution for dealing with a person such as defendant, a sixteen-year-old boy, good student, like has no prior juvenile court record, but he has committed a serious crime in this case.
The State contends the district court gave no weight to the nature and circumstances of the acts and that defendant calculated the time, place and manner of the abuse. The State further contends the district court failed to give sufficient weight to the juvenile court officer's opinion that there was not enough time left for defendant in the juvenile system for him to be adequately treated. The State also argues that the officer testified defendant had a fairly complicated history and is a complex person. The State also correctly argues that defendant presented no evidence to show he could be rehabilitated in the juvenile system. The State recognized defendant's mother testified he could live with her when released from detention. While I admire defendant's mother's pledge of help, I note he was not living with her at the time of the incident.
This is not a simple case. The remarks by this experienced trial judge indicated his frustration in accepting either party's position. The prosecutor's charges and the legislature's mandatory sentencing provisions allowed this judge no discretion to craft a result that was fair and both protected society and allowed the court to discharge its responsibility to protect the child and see that the child could be rehabilitated so he would be a productive member of society.
The State argues the district court does not have this discretion. I agree the decision whether to prosecute, and if so, on what charges, is a matter ordinarily within the discretion of the duly elected prosecutor. State v. Iowa Dist. Ct., 568 N.W.2d 505, 508 (Iowa 1997); State v. Kyle. 271 N.W.2d 689, 693 (Iowa 1978); State v. Aebberheim, 263 N.W.2d 710, 712 (Iowa 1978). The prosecutor is not subject to judicial supervision in determining what charges to bring. See Iowa Dist. Ct., 568 N.W.2d at 508 citing 63C. Am. Jur. 2d Prosecuting Attorneys § 21, at 134-35 (1997).
As did the district court, I find neither option serves either society or the child. If transferred to the juvenile system the child will be released before he is adequately treated. And while the child's mother may be well-intentioned, if she couldn't control him at sixteen when he was an honor student with no record, it is extremely doubtful she can control him when he is released at eighteen. However, nothing in this record convinces me this child or society will be served by sentencing him to a twenty-five year prison term. That said, I must agree with the State that reasons given by the district court for the transfer are not those provided for under the statute. In order to follow the law as I interpret it, I feel compelled to disagree with the majority as I find the district court abused its discretion in ordering the transfer. First, I believe the district court relied on improper factors, and second, defendant has failed to show that there are programs that will render him safe to society in the short time he would have left in the juvenile system. Even in ordering the transfer the district court makes it clear to do so creates a problem situation. There is no evidence to support a finding that the defendant met the necessary burden to gain transfer.
There should be a better available course for this child and society, neither of whom are served here. In this case the prosecutors and legislature have given the experienced and learned district court judge no discretion to help craft it.