Opinion
No. 110,465.
2014-11-21
In the Matter of J.A.O.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant.Chris J. Pate, of Moses & Pate, LLC, of Wichita, for appellee.
Appeal from Sedgwick District Court; Robb W. Rumsey, Judge.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant. Chris J. Pate, of Moses & Pate, LLC, of Wichita, for appellee.
Before GREEN, P.J., STEGALL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
J.A.O. was charged with one count of rape, a severity level 1 person felony. The State filed a motion for adult prosecution and a hearing was held. The State presented evidence from the victim, K.M.E.O., who testified that J.A.O. was her older brother. She testified that J.A.O. had begun to sexually abuse her when she was still in elementary school. While K.M.E.O. could not remember the exact dates of many of the incidents she alleged, she did testify that J.A.O. had sex with her between 20–30 times. K.M.E.O. testified to multiple sexual encounters in Kansas when K.M.E.O. was 14 or younger and J.A.O. was over the age of 14. During one of these incidents, J.A.O choked K.M.E.O., though she was still able to breathe with difficulty.
Ultimately, the district court denied the motion, stating:
“I'll find that the juvenile in this case is presumed to be a juvenile under 38–2347(a)(l) and (a)(2). In determining under (e), in determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the Court shall consider each of the following factors. Any one of these factors can be the basis of the finding that the juvenile should be prosecuted as an adult. But I've looked at all of those factors and considered all of those factors.
“Factor one, the seriousness of the alleged offense. Obviously these are very serious offenses.
“Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner. Candidly, I don't believe it was aggressive, violent. There may have been some premeditation, but even then that was based on the testimony of the witness. Generally it appears to have been not premeditated.
“Whether the offense was against a person or against property. Greater weight is given to the person offenses. These were person offenses, against the victim in this case.
“The number of the alleged offenses unadjudicated and pending against the juvenile. Candidly, there are a number of those.
“Previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender under this code previously, and that didn't that hasn't occurred.
“Whether the offenses were against persons or property and any other previous history of antisocial behavior or patterns of physical violence. Candidly, I didn't find that.
“The sophistication or maturity of the juvenile as determined by a consideration of the juvenile's home, environment, emotional attitude, pattern of living or desire to be treated as an adult. Candidly, these events happened when he was 16 years old, 15, 16 years of age, it appears, based on the testimony. And so back then, no, I don't think he necessarily—there was no evidence that he desired to be treated as an adult back at that time. He had a vehicle that was left to him by his father when his father died, and that was the testimony. So that doesn't show any pattern of living or desire to be treated as an adult.
“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 to be candid with you, the reality is there's probably more as a juvenile than there is as an adult.
“And whether the interests of the juvenile or community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution. And I'll address that factor in just a moment.
“The reality is, in this case, I believe that extended juvenile jurisdiction is the appropriate plan in this case. I've considered all of the factors. I believe that that's the appropriate way to proceed in this case. With that, we'll be in recess.”
The State timely filed this interlocutory appeal claiming that the district court incorrectly applied K.S.A.2013 Supp. 38–2347 when denying the State's motion to prosecute J.A.O. as an adult. Specifically, the State argues that the district court misapplied the statutory presumption for adult prosecution to J.A.O.
To the extent the question requires this court to interpret K.S.A.2013 Supp. 38–2347, our review is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). We review the district court's assessment of the eight statutory factors in K.S.A.2013 Supp. 38–2347(e) for an abuse of discretion. In re D.D.M., 291 Kan. 883, 893, 249 P.3d 5 (2011). There are three ways a district court can abuse its discretion: (1) no reasonable person would take the view adopted by the district court; (2) the judicial action is based on an error of fact; and (3) the judicial action is based upon an error of law. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Generally, a juvenile is presumed to be prosecuted as a juvenile unless the State shows good cause to prosecute as an adult. However, K.S.A.2013 Supp. 38–2347(a)(2) flips the presumption in certain cases:
“The alleged juvenile offender shall be presumed to be an adult if the alleged juvenile offender was: (A) 14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint, if any such offense: (i) If committed by an adult, would constitute an off-grid crime, a person felony or a nondrug severity level 1 through 6 felony.... If the juvenile is presumed to be an adult, the burden is on the juvenile to rebut the presumption by a preponderance of the evidence.” K.S.A.2013 Supp. 38–2347(a)(2).
Even if the presumption of K.S.A.2013 Supp. 38–2347(a)(2) is applicable, the district court still must consider the factors contained in K.S.A.2013 Supp. 38–2347(e). State v. Mays, 277 Kan. 359, 364, 85 P.3d 1208 (2004). These factors are:
“(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.
“(8) whether the interests of the juvenile or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.” K.S.A.2013 Supp. 38–2347(e).
These factors must be taken into consideration to determine if the juvenile has rebutted the presumption of an adult prosecution pursuant to K.S.A.2013 Supp. 38–2347(a)(2). If the district court finds that adult prosecution is not warranted, the district court may designate the proceedings to be an extended jurisdiction juvenile prosecution. K.S.A.2013 Supp. 38–2347(f)(3).
Here, based upon the plain language of the statute, J.A.O. should have been presumed to be an adult, and he concedes this in his brief. The State argues that the district court erroneously applied the statutory presumption. J.A.O. argues that the district court simply misspoke, and even if the district court did misapply the presumption, the court's consideration of the statutory factors demonstrates that J.A.O. overcame any presumption of adult prosecution.
We agree with the State that the district court misapplied the statutory presumption, and we cannot be confident, given this legal error, that the district court's discretionary consideration of the statutory factors would have been enough to overcome the presumption for adult prosecution had it been applied. As such, we reverse the district court and remand for further consideration applying the proper presumption, keeping in mind that this presumption may be overcome by the district court's discretionary consideration of the appropriate statutory factors.
Reversed and remanded with directions.