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In re J.C.N.-V.

Court of Appeals of Oregon

January 22, 2015

In the Matter of J.C.N.-V., a Youth. STATE OF OREGON, Petitioner-Respondent,
J. C. N.-V., Appellant

Argued and Submitted March 18, 2014

Resubmitted en banc December 3, 2014

Page 1047

Washington County Circuit Court. J090600. Petition Number 05J090600. James Lee Fun, Jr., Judge.

Angela Sherbo argued the cause and filed the briefs for appellant.

Jamie Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General.

Before Haselton, Chief Judge, and Armstrong, Ortega, Sercombe, Duncan, Nakamoto, Egan, DeVore, Tookey, Garrett, and Flynn, Judges. Egan, J., dissenting. Ortega, J., joins in the dissent.


Page 1048

[268 Or.App. 507] En Banc


Youth appeals a judgment of the juvenile court granting the state's petition to waive youth into circuit court so that he could be tried as an adult on the charge of aggravated murder. Youth, who was 13 years and eight months old at the time of the alleged offense, was made eligible for adult prosecution by ORS 419C.352, which allows for discretionary waiver for 12- to 14-year-olds accused of certain crimes if the juvenile court " makes the findings required under ORS 419C.349(3) and (4)." The juvenile court in this case, after a hearing, found that youth " at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved" under ORS 419C.349(3) and, after reviewing the additional criteria set out in ORS 419C.349(4), found " that retaining jurisdiction [would] not serve the best interests of the youth and of society and therefore [was] not justified."

On appeal, youth's sole contention is that the juvenile court misinterpreted ORS 419C.349(3) and therefore erred in finding that youth satisfied that criterion. He argues that the text, context, and legislative

Page 1049

history of ORS 419C.349(3) demonstrate that the legislature intended to require " a showing of more sophistication and maturity than is possessed by the twelve to fourteen year-old, with normally developed intellectual and emotional capacities." As explained in detail below, we conclude that the text, context, and legislative history of ORS 419C.349(3) do not support that view. The legislature intended ORS 419C.349(3) to be a predicate threshold finding of mental capacity before the juvenile court weighs the additional, and more wide-ranging, criteria in ORS 419C.349(4). Specifically, the legislature intended ORS 419C.349(3) to test whether a youth had enough sophistication and maturity to appreciate the " nature and quality" of his actions-- i.e., whether he could appreciate what he was doing in a physical sense and that those actions were wrong or would likely have criminal consequences. Because the evidence supports the juvenile court's finding that youth met that standard, we affirm.

[268 Or.App. 508] I. STANDARD OF REVIEW

Youth requests that we exercise our discretion to review certain factual findings de novo, arguing that this is an " exceptional" case. See ORS 19.415(3)(b) (Court of Appeals has discretion to " make one or more factual findings anew upon the record" ); ORAP 5.40(8)(c) (" The Court of Appeals will exercise its discretion * * * to make one or more factual findings anew on the record only in exceptional cases." ). We decline that request. Youth challenges a particular determination of the juvenile court--that youth, at the time of the offense, was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved. But youth's primary contention is a legal one--that the juvenile court made an " erroneous assumption[ ] about what the statutory term[s] mean[ ]" by " equating 'average' 13 year-old sophistication and maturity with the higher degree of sophistication and maturity intended by the legislature." Put another way, the success of youth's argument on appeal turns on the proper interpretation of ORS 419C.349(3), not on whether we take a fresh look at the evidence in this case. Cf. Dept. of Human Services v. A. R. S., 256 Or.App. 653, 656, 303 P.3d 963, rev den, 354 Or. 386, 314 P.3d 964 (2013) (declining to exercise de novo review because the court could resolve the " appeal based on a purely legal question--one that [was] not dependent on any disputed factual findings of the trial court" ). Beyond that, our review of the juvenile court's findings that relate to the disputed legal issue shows that those findings comport with the evidence in the record, and those findings are consistent with the court's decision.

For those reasons, we conclude that this is not a case that warrants de novo review of the evidentiary record. Accordingly, we review the record to determine whether any evidence, and the inferences that reasonably can be drawn from the evidence, supports the juvenile court's findings. State v. S. T. S., 236 Or.App. 646, 655, 238 P.3d 53 (2010). We review the juvenile court's legal conclusions, including its interpretation of ORS 419C.349(3), for errors of law. Id.

[268 Or.App. 509] II. BACKGROUND

In accordance with our standard of review, we set out the procedural and historical facts necessary to give context to our discussion of the parties' dispute about the meaning of ORS 419C.349(3). The state alleged that youth and the older brother of youth's girlfriend, Alejandro Aguilar-Mandujano, beat, stabbed, and robbed the victim on October 2, 2009. The victim died as a result of his injuries. The state charged youth by juvenile court petition with offenses that, if committed by an adult, would constitute the crimes of aggravated murder, first-degree robbery, and unlawful use of a weapon. The state petitioned to waive youth into circuit court for prosecution as an adult on the aggravated murder charge under ORS 419C.349 and ORS 419C.352.

ORS 419C.352 sets forth the conditions for waiver for youths who are 12, 13, or 14 years of age:

" The juvenile court, after a hearing * * * may waive a youth under 15 years of age at the time the act was committed to circuit court for prosecution as an adult if:

Page 1050

" (1) The youth is represented by counsel during the waiver proceedings;
" (2) The juvenile court makes the findings required under ORS 419C.349(3) and (4); and
" (3) The youth is alleged to have committed an act or acts that if committed by an adult would constitute [aggravated murder or other crimes]."

Subsections (3) and (4) of ORS 419C.349 set forth specific criteria by which the court assesses the youth:

" (3) The youth at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved; and
" (4) The juvenile court, after considering the following criteria, determines by a preponderance of the evidence that retaining jurisdiction will not serve the best interests of the youth and of society and therefore is not justified:
" (a) The amenability of the youth to treatment and rehabilitation given the techniques, facilities and personnel for rehabilitation available to the juvenile court and [268 Or.App. 510] to the criminal court which would have jurisdiction after transfer;
" (b) The protection required by the community, given the seriousness of the offense alleged;
" (c) The aggressive, violent, premeditated or willful manner in which the offense was alleged to have been committed;
" (d) The previous history of the youth, including:
" (A) Prior treatment efforts and out-of-home placements; and
" (B) The physical, emotional and mental health of the youth;
" (e) The youth's prior record of acts which would be crimes if committed by an adult;
" (f) The gravity of the loss, damage or injury caused or attempted during the offense;
" (g) The prosecutive merit of the case against the youth; and
" (h) The desirability of disposing of all cases in one trial if there were adult co-offenders."

Here, the juvenile court heard evidence that, at the time the victim was killed in early October 2009, youth was 13 years old and Aguilar-Mandujano was 20 years old. Aguilar-Mandujano gave a statement to police, describing how he had planned to rob and murder the victim and explaining that he and youth carried out the plan at a park near the Tualatin River. Youth waived his Miranda rights and, after being confronted with Aguilar-Mandujano's statement, admitted that he had participated in the robbery and murder. Youth stated that, on the day of the murder, Aguilar-Mandujano told him that he planned to kill the victim, and youth agreed to " have his back." Youth told police that he drove with Aguilar-Mandujano to the park and, after they arrived, he hit the victim on the head several times with a tire iron while Aguilar-Mandujano stabbed him. After being handed the knife, youth then stabbed the victim. At Aguilar-Mandujano's direction, youth kicked the victim's body into the river.

[268 Or.App. 511] Three expert witnesses provided testimony related to whether " youth at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved." ORS 419C.349(3). On behalf of the state, Dr. Sebastian interviewed and tested youth on three dates in November 2010. In her report, which the state introduced and relied upon in its waiver petition, Sebastian explained that youth was " bright," he " knew that he would be in legal trouble from his encounter with [the victim]," and he could " articulate that what he did was wrong and understands the consequences." At the same time, Sebastian stated that youth " has not yet developed an internal locus of control, is influenced and led by older youth[s]," and " has a hard time delaying gratification, favoring a more immediate payoff." Ultimately, Sebastian summarized her conclusions regarding youth's sophistication and maturity:

" By structured interview, testing and collateral data, it is this examiner's opinion that [youth] is as sophisticated and mature as one might expect of a thirteen/fourteen-year

Page 1051

old. In other words, he is average in sophistication and maturity for his age.
" Using records, testing and interview it is clear this young man has the ability to: 1) think independently, 2) understand behavioral norms and expectations of adolescents in the larger picture, 3) weigh the risks and benefits of his actions, 4) demonstrate age appropriate social skills, 5) anticipate the consequences of his actions, 6) discern which of his behaviors are antisocial.
" When compared to his age mates, he is just as effective or more effective (because of his strong cognitive ability) in understanding that his crime was wrong and identifying alternatives to his actions. He is less able than his peers at understanding his emotions, resolving conflicts effectively and resisting the influence of other youth[s]."

Youth presented the testimony of Dr. Nagel, who did not examine youth, but testified about the science of adolescent brain development. Nagel testified that the brain's prefrontal cortex is late to develop as adolescents age, yet " is most heavily involved in * * * executive functions," which includes " planning, problem solving, higher level attention, [268 Or.App. 512] the ability to dual-task, the ability to appreciate long-term consequences; all of those very high level thinking type things." Nagel explained that the " crux" of an adolescent's " vulnerability and immaturity" was that the " connections between the pre-frontal cortex that allow you in a cold situation to say, 'Oh yes, I know right from wrong,' are not mature. * * * [T]hey don't kick in fast enough to rein in the emotional or reward based systems of the brain." When asked if a 13-year-old's brain could be developed enough to make reasoned decisions " in heated, emotional situations," she explained that " [t]here has been no evidence to suggest that a 13-year-old anywhere in the world would be the same as a mature adult."

Youth also presented a written evaluation from Dr. Bolstad, who evaluated youth six months after his arrest and then twice thereafter. With respect to youth's sophistication and maturity, Bolstad " did not find consistent evidence to indicate that [youth] is any less mature than most 13 year olds. In some respects, he appears to be more mature; in others, less mature." Bolstad pointed to research showing " that young adolescents are more vulnerable to impulsive decision making and risky behaviors than their older, adult counterparts." " It would be contrary to [that research]," Bolstad stressed, " to assume that [youth] possessed the same rational faculties as an adult in his decision making to participate in this alleged crime." In Bolstad's view, " [o]ne of the central aspects pertaining to the issue of sophistication and maturity * * * is the discrepancy in ages between [Aguilar- Mandujano] and [youth]." Bolstad explained that " [y]oung adolescents are vulnerable to turning over their decision making responsibilities to their peers or leaders among their peer group."

Bolstad also testified at the waiver hearing, reiterating his concerns about youth's susceptibility to peer pressure and his poor judgment. On cross-examination, Bolstad agreed that a normal 13-year-old brain can " appreciate the idea of [assaultive] behavior," can " appreciate or understand the property rights of others," and can understand that assaultive behavior is wrong. The prosecutor also asked about youth's appreciation of his actions at the point when [268 Or.App. 513] youth drove to the park with Aguilar-Mandujano and the victim:

" Q. Alright, so again let's just accept that assumption, that he knew they were going to kill [the victim], he was asked to participate. Could he appreciate what he was about to do at that point?
" A. In terms of appreciating that what he was about to do was against the law? Yes. In terms of appreciating that what he was doing was potentially going to harm someone? Yes.
" Q. So, the nature of the crime he could appreciate?
" A. The nature of the crime, yes. I'm not so sure he could appreciate it at a level of having empathy because I think that's a much more challenging task for a 13 year old with an immature brain, but in those other regards I would answer yes."

Page 1052

After considering that evidence, along with numerous exhibits and testimony from several witnesses as to the criteria in ORS 419C.349(4), the court issued written findings in support of its decision to waive youth into circuit court to be tried as an adult. At the outset, the court found that " [t]he evidence supporting Youth's involvement in the alleged offenses is reliable and convincing." The court characterized youth's participation as " purposeful and intimate" and described youth's " reaction" following his participation in the offense as " similarly purposeful," given youth's efforts to hide his involvement and his ability to " maintain confidentiality of his participation in the alleged events until confronted by police."

In accord with the testimony of the expert witnesses, the court found that youth's behavior " demonstrate[d] a degree of maturity consistent with Youth's biological age at the time of the event, and in several respects a degree of maturity consistent with an older youth." Citing testimony from Nagel, the court acknowledged that " adolescents are particularly susceptible to poor judgment in emotional or peer driven situations." But, in the court's view, " [a]lthough Youth's decisions were tragically flawed, his statements to police demonstrate awareness regarding the nature of the criminal act, the degree of his participation in the criminal [268 Or.App. 514] act, and an awareness of the consequences of the criminal act if apprehended by authorities." Further, the court found that youth " demonstrated sophisticated behavior and a high degree of maturity in commission of the offenses, through the purposeful and goal oriented conduct before, during and after the event."

Ultimately, the court found, under ORS 419C.349(3), that youth " was of sufficient sophistication and the maturity to appreciate the nature and quality of the conduct of the alleged offense of Aggravated Murder." The court also found that waiver was in the best interest of society and youth after reviewing the criteria in ORS 419C.349(4):

" Because of the seriousness of the alleged crime, Youth's prior record of assaultive and violent behavior, and the inability of previous community interventions to successfully address Youth's behavioral and emotional health, the amenability of the Youth to rehabilitation and treatment is best served through waiver to the adult court for prosecution."

The court granted the state's petition.[1] As noted, on appeal, youth's sole contention is that the court erred in finding that youth, at the time of the alleged offense, was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved.


Youth's challenge to the juvenile court's waiver decision, which is focused entirely on the court's finding under ORS 419C.349(3), turns on what the legislature intended that statute to mean. In youth's view, " the statute requires a showing of more sophistication and maturity than is possessed by the twelve to fourteen year-old, with normally developed intellectual and emotional capacities." And, youth argues, the court's assessment of a youth's ability to " appreciate the nature and quality of the conduct" [268 Or.App. 515] is a wide-ranging inquiry, taking into account the youth's ability to " exercise mature judgment" and his " vulnerability to peer pressure." Youth contends that the court erred by " discounting the scientific evidence about young adolescents' (and this young adolescent's, in particular) abilities, to exercise mature judgment, because of the co-occurrence of the onset of puberty" and the ongoing development of the brain. The state counters that a review of the text, context, and legislative history of ORS 419C.349 and ORS 419C.352 reveals no evidence that " the criterion in what is now ORS 419C.349(3) was intended as anything more than a predicate threshold finding of

Page 1053

mental capacity the state must satisfy before the juvenile court weighs the additional criteria in ORS 419C.349(4)." According to the state, " the legislature intended that [criterion] to exclude from adult prosecution, those juveniles who did not comprehend, because of mental or emotional defect or marked immaturity, the nature and quality of their criminal conduct."

Our task is to ascertain the meaning of the legislature's intent by examining the statute's text in context, along with relevant legislative history. State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009). We start with the statute's text, which serves as the " best evidence of the legislature's intent." PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). In the absence of evidence to the contrary, we assume that the legislature intended that the wording of an enactment to be given its ordinary meaning. State v. Murray, 340 Or. 599, 604, 136 P.3d 10 (2006). As a " useful starting point" to determine that meaning, we look to the definitions of the terms used in ORS 419C.349(3) found in dictionaries of common usage. State v. Holloway, 138 Or.App. 260, 265, 908 P.2d 324 (1995). We are mindful, however, that the meaning of the statute does not " turn only on the dictionary definition of one of its words" ; we must examine how each word is used in context. Elk Creek Management Co. v. Gilbert, 353 Or. 565, 574, 303 P.3d 929 (2013). That is especially true where, as here, the parties dispute not just the meaning of a single term, but the meaning of an entire statutory phrase--" sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved."

[268 Or.App. 516] With those principles in mind, we start with the dictionary definitions of the terms in ORS 419C.349(3). " Sophistication" means " the quality or state of being sophisticated" and " the quality or the character of being intellectually sophisticated (as through cultivation, experience, or disillusionment)." Webster's Third New Int'l Dictionary 2174 (unabridged ed 2002). " Sophisticated," in turn, means " 2 : deprived of native or original simplicity: as * * * b : WORLDLY-WISE, KNOWING < a ~ adolescent> ." Id. The dictionary defines " maturity" as " the quality or state of being mature," id. at 1395, and " mature" as

" 2 a : having attained the normal peak of natural growth and development : fully grown and developed * * * c : having or expressing the mental and emotional qualities that are considered normal to an adult socially adjusted human being < a ~ outlook> < parents were willing to be ~, to take responsibility--H.S.Canby> ."

Id. at 1394. As youth suggests, those definitions of sophistication and maturity--viewed in isolation--describe qualities that are associated with a normal, well-adjusted adult.

But the statute, of course, does not use those terms in isolation. It requires " sufficient sophistication and maturity." ORS 419C.349(3) (emphasis added). " Sufficient" means " marked by quantity, scope, power, or quality to meet with the demands, wants, or needs of a situation or of a proposed use or end." Webster's at 2284. That term, as its definition suggests, is largely dependent on the words it modifies. Here, where we are concerned with " sufficient sophistication and maturity," we ask whether the youth has some amount of those qualities to meet the demands of a " particular situation" or " proposed * * * end." And the " particular situation" we are concerned with is the youth's ability " to appreciate the nature and quality of the conduct involved."

" Appreciate" means " 1 a * * * (2) : to judge or evaluate the worth, merit, quality, or significance of : comprehend with knowledge, judgment, and discrimination < incapable of appreciating the difference between right and wrong--B.N.Cardozo> ." Id. at 105. As the dictionary's verbal [268 Or.App. 517] illustration[2] from Justice Cardozo suggests, however, the word " appreciate" has a recognized use in the law related to criminal capacity. Indeed, youth acknowledges that the legislature incorporated an " element of capacity" into the juvenile court's evaluation of the youth's sophistication and maturity. And youth specifically

Page 1054

asserts that " appreciate," as used in ORS 419C.349(3), has the same meaning as " appreciate" in Oregon's statute describing the insanity ...

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