In the Matter of D.D.M.

• Decision Date: 25 March 2011
• Docket Number: No. 101,868.,101,868.
• Parties: In the Matter of D.D.M.
• Court: Kansas Supreme Court

291 Kan. 883

249 P.3d 5

In the Matter of D.D.M.

No. 101,868.

Supreme Court of Kansas.

March 25, 2011.

[249 P.3d 6 , 291 Kan. 883]

Syllabus by the Court

1. In a juvenile offender proceeding, the prosecutor may file a motion requesting the court to authorize prosecution of the juvenile as an adult under the applicable criminal statute. K.S.A. 2010 Supp. 38–2381(a)(2) permits the State to appeal the district court's denial of a motion for authorization to prosecute a juvenile as an adult.

2. When the district court disposes of the State's motion for adult prosecution by ordering an extended jurisdiction juvenile prosecution, the court has effectively denied the requested authorization to prosecute the juvenile as an adult, within the meaning of K.S.A. 2010 Supp. 38–2381(a)(2).

3. K.S.A. 2010 Supp. 38–2347(a)(2) provides that a juvenile shall be presumed to be an adult in certain circumstances. If the presumption of adult prosecution attaches, the juvenile has the burden to rebut the presumption.

4. Even where a presumption of adult prosecution is applicable, the district court must consider each of the eight factors set forth in K.S.A. 2010 Supp. 38–2347(e) when determining whether to authorize adult prosecution or whether to designate the proceeding as an extended jurisdiction juvenile prosecution.

5. The facts used by the district court in considering the eight statutory factors of K.S.A. 2010 Supp. 38–2347(e) must be supported by substantial competent evidence. However, the district court's evaluation and weighing of the K.S.A. 2010 Supp. 38–2347(e) statutory factors should be afforded the deference applicable to discretionary decisions.

6. A reviewing court must accept as true the evidence and accompanying inferences which support or tend to support the district court's findings. It is inappropriate for a reviewing court to substitute its evaluation of the evidence for that of the district court.

Todd G. Thompson, county attorney, argued the cause, Cheryl A. Marquardt, assistant county attorney, and Steve Six, attorney general, were with him on the brief for appellant.Rhonda Keylon Levinson, of Levinson & Levinson PA, of Basehor, argued the cause, and Benjamin N. Casad, of Kansas City, was with her on the briefs for appellee.

The opinion of the court was delivered by JOHNSON, J.:

Proceedings were commenced against D.D.M. under the Juvenile Offender Code, and the State filed a motion to prosecute him as an adult. The district court declined to order adult prosecution, finding that D.D.M. should be prosecuted under the extended juvenile jurisdiction procedure. The State appealed, and the Court of Appeals reversed the district court and remanded with directions to prosecute D.D.M. as an adult. We granted D.D.M.'s petition for review. Finding that the Court of Appeals improperly reweighed the evidence, we reverse and remand for the district court to proceed with extended jurisdiction juvenile prosecution.

Factual Overview

In November 2008, D.D.M., age 16, along with two of his peers, approached Roy Simpson and Damon Osborne, who were walking near a gas station parking lot; D.D.M. was riding a bicycle. One of the young men pointed a gun at Simpson and Osborne and told them to empty their pockets. The robbers collected Simpson's wallet, checkbook, cellular telephone, glasses, and digital camera, as well as a hat and one dollar from Osborne. Before leaving, one of the robbers told Simpson that if he called the police, the victims would be killed.

When the police responded to the scene, Simpson described the three young men and their clothing. Officer Demetric Mariner left in search of the suspects and located two young men at the side of a Wendy's restaurant near the gasoline station. When the officer shined a search light on the suspects, they fled afoot. Officer Mariner caught, detained, and later arrested D.D.M., albeit he did not possess any of the stolen property or a weapon. Meanwhile, Officer Brandon Mance apprehended and caught the second young man, who was in possession of Simpson's wallet and checkbook. A cellphone and paintball gun were recovered near the location where Officer Mariner originally encountered the two suspects. A bicycle was located near where the victims were robbed.

A juvenile offender proceeding was commenced against D.D.M. for having committed acts which would have been felonies if committed by an adult, specifically, one count of aggravated robbery and two counts of criminal threat. The State then filed a motion to prosecute D.D.M. as an adult, alleging that he was presumed to be an adult under K.S.A. 2010 Supp. 38–2347(a)(2). The hearing on that motion was to double as a preliminary hearing in the event adult prosecution was authorized. See K.S.A. 2010 Supp. 38–2347(b) (permitting court to make preliminary hearing findings at hearing on motion to prosecute as an adult).

At the hearing, the State called Officer Mariner, Officer Mance, and Simpson to testify, and the district court considered the court files relating to D.D.M.'s prior juvenile proceedings. D.D.M. did not call any witnesses. Further, D.D.M.'s attorney conceded the existence of the facts necessary to establish the presumption of adult prosecution under K.S.A. 2010 Supp. 38–2347(a)(2), i.e., D.D.M. had a prior felony adjudication, he was 16 years old, and he was currently charged with a severity level 3 offense. Instead, the defense focused on the facts which rebutted the presumption of adult prosecution and argued that the district court should utilize the extended juvenile jurisdiction procedure.

All the hearing participants agreed that K.S.A. 2010 Supp. 38–2347(e) required the district court to consider the following eight statutory factors:

“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution;

“(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

“(3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted;

“(4) the number of alleged offenses unadjudicated and pending against the juvenile;

“(5) the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender under this code or the Kansas juvenile justice code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;

“(6) the sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living or desire to be treated as an adult;

“(7) whether there are facilities or programs available to the court which are likely to rehabilitate the juvenile prior to the expiration of the court's jurisdiction under this code; and

“(8) whether the interests of the juvenile or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.”

Pointing to the first three factors, the State argued that the current offense was a serious person felony which had been committed in an aggressive, violent, premeditated, and willful manner. Further, the State argued that factor (5) favored adult prosecution because the juvenile offender resources had been exhausted on D.D.M. in his prior proceedings, albeit the State conceded that the court could exercise juvenile jurisdiction over D.D.M. until he was 22 1/2 years old.

D.D.M.'s counsel countered that an analysis of the eight factors should lead the court to conclude that extended juvenile jurisdiction was warranted. The defense pointed out that the weapon used was merely a paintball gun. Further, because D.D.M. had previously been in a youth correctional facility for less than a year, he had not fully utilized its resources and rehabilitation in the juvenile system remained a viable option.

After taking the matter under advisement, the district court issued a memorandum decision which provided, in part:

“18. There is a presumption in this case that the respondent should be considered an adult.

“19. The offenses that the Respondent is charged with are level 3 and level 9 person felonies. While very serious offenses they do not arise to nongrid felonies or level 1 or 2 person felonies. Further, the community may be protected without adult prosecution as an extended juvenile prosecution could result in the juvenile correctional facility for more than 6 years.

“20. The alleged offenses do not seem to have been committed particularly aggressively. The court does recognize that the threat of violence was present in all 3 charges but acts of violence did not occur.

“21. The alleged offenses were against persons not property.

“22. Except for this case there are no unadjudicated alleged offenses pending against the Respondent.

“23. The Respondent has been previously adjudicated on 2 occasions to be an offender but neither case involved allegations that were against persons.

“24. The Respondent may not be as mature as other juveniles his age as evidenced by the crime being committed by juveniles who were on bicycles. Most 16 year olds have driver's licenses allowing them to drive cars. The court does recognize that the Respondent has been convicted of Driving Under the Influence of Alcohol or Drugs. This may explain why bicycles were used in the commission [ sic] the alleged offense.

“25. The Respondent is more likely to be rehabilitated in the juvenile system than in the adult correctional system. The juvenile system will have 6 years or more to rehabilitate the Respondent if he is found to have committed the alleged offenses.

“26. The interests of the Respondent and community will be better served if the juvenile is prosecuted under the extended juvenile prosecutio...