Johnson, In Interest of

• Decision Date: 17 October 1980
• Docket Number: No. 80-51985-A,80-51985-A
• Citation: 5 Kan.App.2d 420,617 P.2d 1273
• Parties: In the Interest of William David JOHNSON, a minor under the age of 18 years.
• Court: Kansas Court of Appeals

Page 1273

617 P.2d 1273

5 Kan.App.2d 420

In the Interest of William David JOHNSON, a minor under the

age of 18 years.

No. 80-51985-A.

Court of Appeals of Kansas.

Oct. 17, 1980.

Syllabus by the Court

In a proceeding to certify a seventeen-year-old to stand trial as an adult on charges of aggravated robbery and assault it is held : There was substantial competent evidence to support the order of certification even though there was minimal or no evidence of the juvenile's maturity, record and previous history, or amenability to the care, treatment and training program for juveniles available through the facilities of the court.

Ernest H. Moulos and Gary Howard, Wichita, for appellant.

Ronald D. De Moss, Asst. Dist. Atty., Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., for appellee.

Before FOTH, C. J., REES, J., and HARMAN, C. J., Retired, sitting by designation.

FOTH, Chief Judge:

William David Johnson appeals from an order finding him not a "fit and proper subject to be dealt with under the Kansas juvenile code" pursuant to K.S.A.1979 Supp 38-808(b ) and certifying him for trial as an adult on charges of aggravated robbery and assault. He contends the evidence was insufficient to support the order.

At the certification hearing the State's evidence dealt exclusively with how the alleged crime was planned and perpetrated. No evidence was introduced as to Johnson's record or previous history (although it was agreed there was no prior record) and none as to his personal background, psychological makeup or maturity (although it was undisputed that he was just 17 days short of his eighteenth birthday when the incident occurred). Likewise, no evidence was offered by either party as to the facilities available to the court operating under the juvenile code, but the trial judge took into account his own knowledge gained through considerable experience in working under the code.

The issue is whether evidence thus limited in scope is sufficient under the present statute to sustain a finding that a juvenile should be tried as an adult. As the State concedes in its brief, "After reviewing the pertinent opinions ... the State has found no case where (the) court affirmed a waiver based on cumulatively less substantial evidence than was presented in this case."

Had this case arisen under the statute as it read prior to 1975, the result would have been clear. Given the age of the juvenile and the felonious nature of the offense, judicial inquiry under the prior statute focussed exclusively on the amenability of the child to the care, treatment and training programs available through the court; substantial evidence on this issue was required, and the seriousness of the offense was not controlling. See, e. g., In re Patterson, Payne & Dyer, 210 Kan. 245, 499 P.2d 1131 (1972). In this case evidence on amenability was totally lacking, and reversal would have been required.

In 1975, however, the statute was amended to parallel the analysis of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, (1966), which suggested factors a court might consider in certifying a juvenile under the District of Columbia juvenile code. See In re White, 224 Kan. 717, 585 P.2d 1046 (1978). K.S.A.1979 Supp. 38-808(b ) now provides in part:

"In determining whether or not such finding should be made, the court shall consider each of the following factors: (1) Whether the seriousness of the alleged offense is so great that the protection of the community requires criminal prosecution of the child; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) the maturity of the child as determined by consideration of the child's home, environment, emotional attitude and pattern of living; (4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (5) the record and previous history of the child; (6) whether the child would be amenable to the care, treatment and training program for juveniles available through the facilities of the court; and (7) whether the interests of the child or of the community would be better served by criminal prosecution of the child. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue." Emphasis added.

As may be seen, amenability is now but one of seven factors to be considered, and, most importantly, "insufficiency of evidence" as to any one factor is not controlling.

Since the amendment two countervailing principles have been established. On the one hand, the decision to certify must still be supported by substantial evidence. In re Ferris, 222 Kan. 104, 563 P.2d 1046 (1977). Hence a petition, although charging murder, supported only by arguments of counsel and not by any evidence, was held inadequate for certification in In re White, 224 Kan. 717, 585 P.2d 1086. On the other hand, "the statute does not require each factor to receive equal weight." In re Edwards, 227 Kan. 723, 729, 608 P.2d 1006 (1980). In Edwards the trial court's order failed even to mention two of the statutory factors maturity of the child and the previous record of the child. The Supreme Court nevertheless upheld the certification, relying on the statutory direction that insufficiency of evidence on one or more factors should not control. It was enough that there was substantial evidence to support the ultimate finding that the juvenile should be treated as an adult, despite the trial court's apparent disregard of two elements which might bear on that ultimate finding.

In this case the State's evidence showed: On January 10, 1980, Johnson and a friend borrowed a .357 Magnum and spent the night together, discussing among other things what "pulling a job" would be like. The next day they held up a Wichita liquor store, with Johnson holding the gun on the 75-year-old female clerk. After taking some $100 from the cash drawer and just as they were departing, Johnson fired a shot in the direction of the clerk. It struck about a foot from her, and might well have hit her had she not impulsively moved just before the shot was fired.

On the basis of this evidence the trial court spoke to each of seven statutory factors:

"THE COURT: I'm going to cover each of the points mentioned in KSA 38-808 in making the determination as to whether the juvenile is a fit and proper subject to be dealt with under the Kansas Juvenile Code. First is whether the seriousness of the alleged offense is so great that the protection of the community requires criminal prosecution of the child. My finding in regard to that particular point is that it is a serious offense involving the shooting of a gun at the very least in the general direction of an individual, and that it is serious enough to require criminal prosecution of the child.

"The second is whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner. In that regard I am going to find that the offense was, alleged offense, was committed in an aggressive, violent, and willful manner.

"The third is the maturity of the child as determined by consideration of the child's home, environment, emotional attitude and pattern of living. There's really been no evidence on that except that the child is now age eighteen, which does indicate that he is an adult at this time, or at the time of this hearing. And at the time of this hearing he is mature enough to be an adult.

"Fourth is whether the alleged offense was against persons or against property, greater weight being given to offenses...