                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 85

                                                                    APRIL TERM, A.D. 2013


                                                                             July 12, 2013


JB,

Petitioner,

v.                                                                  No. S-12-0239

THE STATE OF WYOMING,

Respondent.


                                       Original Proceeding
                                   Petition for Writ of Review
                                District Court of Fremont County
                              The Honorable Marvin L. Tyler, Judge


Representing Petitioner:
      Diane M. Lozano, State Public Defender; Eric M. Alden, Senior Assistant Appellate
      Counsel. Argument by Mr. Alden.

Representing Respondent:
      Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General;
      Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant
      Attorney General. Argument by Mr. Pope.


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] The Petitioner, JB,1 is a minor who was charged as an adult with nine felonies
arising from a home invasion and the resulting deaths of two individuals. He was fifteen
at the time of the crimes. Prior to trial, JB filed a Motion to Transfer Proceedings to
Juvenile Court. The district court denied the motion. JB then filed a Petition for Writ of
Review seeking interlocutory review of that decision. In support of his Petition, he
claimed that the district court improperly placed the burden on him to establish that the
case should be transferred to juvenile court. We granted the Petition. Upon review, we
conclude that the district court erred in failing to assign the burden of persuasion to the
State to establish that the case should not be transferred to juvenile court. Accordingly,
we reverse and remand for further proceedings.

                                                ISSUE

[¶2] Although JB lists nine issues in his brief, we find a single issue to be dispositive:
Did the district court improperly place the burden of persuasion on JB rather than on the
State?

                                               FACTS

[¶3] On March 14, 2012, JB was charged with two counts of first degree murder, two
counts of conspiracy to commit first degree murder, two counts of aggravated robbery,
two counts of conspiracy to commit aggravated robbery, and one count of first degree
arson. The prosecution alleged that JB had assisted three adults in their plan to rob and
kill two victims in their home. It asserted that two of the adults entered the victims’
home and robbed and attacked them, while JB and the other adult stayed outside to act as
lookouts and messengers. Later, JB entered the home, and as instructed by one of the
adults, allegedly struck one of the victims on the head with a dresser drawer. The
prosecution alleged that JB may have struck the killing blow. It was further alleged that
JB and one of the adults attempted to set fire to the home.

[¶4] Although JB was fifteen when the crimes were allegedly committed, he was
charged in district court as an adult. JB moved to transfer his case to juvenile court. In
his memorandum in support of the motion to transfer, JB asserted that he did not


1
  We generally use a minor’s name when he has been charged as an adult. However, pursuant to Wyo.
Stat. Ann. § 14-6-224(b) (LexisNexis 2011), hearings on motions to transfer proceedings to juvenile court
are closed to the public. The district court closed the hearing in JB’s case, and pleadings and orders
connected to the motion to transfer were filed under seal. We granted JB’s motion to continue treating
this as a confidential case and, accordingly, we identify the Petitioner by his initials.




                                                   1
participate in the planning of the crimes, but was coerced into participating by the adults.
He emphasized that he was developmentally challenged and immature, and likely to be
rehabilitated by the services and facilities available to the juvenile court. The State
resisted the motion. After substantial briefing from the parties, the district court held a
hearing and, ultimately, denied the motion. JB filed a Petition for Writ of Review,
seeking to challenge the district court’s denial of his motion to transfer the proceedings to
juvenile court. We granted the Petition.

                                STANDARD OF REVIEW

[¶5] “Allocation of the burden of proof is a matter of law.” Dan’s Supermarket v. Pate,
2001 WY 104, ¶ 8, 33 P.3d 1121, 1124 (Wyo. 2001); JM v. Department of Family Servs.,
922 P.2d 219, 221 (Wyo. 1996). We review questions of law de novo. Amoco Prod. Co.
v. EM Nominee Partnership Co., 2 P.3d 534, 540 (Wyo. 2000).

                                      DISCUSSION

[¶6] Under Wyoming’s Juvenile Justice Act, cases against minors fourteen or older
who are charged with violent felonies “may be originally commenced either in the
juvenile court or in the district court.” Wyo. Stat. Ann. § 14-6-203(f)(iv). A minor being
prosecuted in district court may move to have the proceedings transferred to juvenile
court pursuant to Wyo. Stat. Ann. § 14-6-237(g), which provides as follows:

              If any proceeding commenced in the district court is within
              the concurrent jurisdiction of the juvenile court, the district
              court may on motion of any party or on its own motion order
              any proceeding transferred to the juvenile court. The district
              court judge may, after notice and hearing, find the matter
              more properly suited to disposition under the provisions of
              this act. The order of transfer confers upon the juvenile court
              full jurisdiction in the matter as if originally commenced in
              the juvenile court.

Subsection (b) of this statute sets forth the criteria to be considered by the court when
making transfer decisions:

              The court shall order the matter transferred to the appropriate
              court for prosecution if after the transfer hearing it finds that
              proper reason therefor exists. The determinative factors to be
              considered by the judge in deciding whether the juvenile
              court’s jurisdiction over such offenses will be waived are the
              following:



                                             2
                     (i)  The seriousness of the alleged offense to the
                     community and whether the protection of the
                     community required waiver;

                     (ii)   Whether the alleged offense was committed in
                     an aggressive, violent, premeditated or willful manner;

                     (iii) Whether the alleged offense was against
                     persons or against property, greater weight being given
                     to offenses against persons especially if personal injury
                     resulted;

                     (iv) The desirability of trial and disposition of the
                     entire offense in one (1) court when the juvenile’s
                     associates in the alleged offense are adults who will be
                     charged with a crime;

                     (v)     The sophistication and maturity of the juvenile
                     as determined by consideration of his home,
                     environmental situation, emotional attitude and pattern
                     of living;

                     (vi) The record and previous history of the juvenile,
                     including previous contacts with the law enforcement
                     agencies, juvenile courts and other jurisdictions, prior
                     periods of probation to this court, or prior
                     commitments to juvenile institutions;

                     (vii) The prospects for adequate protection of the
                     public and the likelihood of reasonable rehabilitation
                     of the juvenile (if he is found to have committed the
                     alleged offense) by the use of procedures, services and
                     facilities currently available to the juvenile court.

[¶7] As noted above, the district court denied JB’s motion to transfer the case to
juvenile court. The district court set forth its reasoning in a sixteen-page written decision
discussing all of the statutory factors. In its order, the district court stated that JB “has
the burden of demonstrating, by a preponderance of the evidence, that this case should be
transferred from District Court to Juvenile Court.” It concluded that JB “failed to show,
by a preponderance of the evidence, that the proceedings in this case should be
transferred to Juvenile Court.” Relying on our decision in Hansen v. State, 904 P.2d 811
(Wyo. 1995), JB claims that the district court erred in assigning the burden of persuasion


                                             3
to him. We agree.

[¶8] In Hansen, we considered two consolidated petitions for writs of review. In one,
sixteen-year-old Arthur Hansen was charged as an adult in district court. His motion to
transfer the proceedings to juvenile court was denied, and he petitioned for review of that
decision. Id. at 814-15. In the other, proceedings in juvenile court were initiated against
fifteen-year-old Derek Pappan. The State’s motion to transfer his case to district court
was granted, and he petitioned for review. Id. at 815. Both petitioners claimed that
Wyoming’s Juvenile Justice Act was “defective in failing to assign a burden of proof.”
Id. at 823.

[¶9] In each case, the court had assigned the burden of persuasion to the State. We
approved of that allocation of the burden, explaining as follows:

                     The phrase “burden of proof” is applied to two related,
             but different, concepts which occur in connection with pre-
             trial hearings. The burden of producing evidence is assigned
             to one party or the other and, likewise, the burden of
             persuasion is assigned to one party or the other. The
             interrelation and dynamics of these concepts is described in 1
             CHRISTOPHER B. MUELLER & LAIRD C.
             KIRKPATRICK, FEDERAL EVIDENCE § 62, at 301 (2d
             ed. 1994):

                           To say that a party bears the burden of
                    producing evidence is to say she runs the risk of losing
                    automatically (on a motion to dismiss or for judgment
                    as a matter of law) if she does not offer sufficient
                    evidence to enable a reasonable person to find in her
                    favor. At the outset, usually the party who bears the
                    burden of persuasion also bears the burden of
                    production. . . .

                           To say that a party bears the burden of
                    persuasion (or the risk of nonpersuasion) is to say she
                    can win only if the evidence persuades the trier of the
                    existence of the facts that she needs in order to prevail.
                    Ordinarily that means that she wins only if, on the
                    basis of the evidence, the facts seem more likely true
                    than not. Perhaps because this burden operates at the
                    end of trial, courts often say it never “shifts.”
                    (Footnote omitted.)



                                            4
               In both of these cases, the State was assigned the burden of
               persuading the court that the evidence supported the factors
               justifying the trial of the juvenile in district court. The
               burden of producing evidence appropriately is assigned to the
               party seeking relief. In Pappan’s c a s e , t h a t w a s t h e
               prosecuting attorney who moved to transfer from juvenile
               court to district court. In the case of Hansen, that burden of
               producing evidence belonged to Hansen who moved to
               transfer the case from district court to juvenile court.

                       We reiterate that, in both of these pre-trial hearings,
               the court and the parties clarified the burden of persuasion
               prior to the end of the respective hearings.

Id. at 823-24 (emphasis added).

[¶10] JB’s case is similar to Mr. Hansen’s, in that criminal charges were filed in the
district court and the motion for transfer to juvenile court was denied. In the instant case,
the record does not indicate that there was any discussion between the court and the
parties regarding the allocation of the burden of proof. The record reflects that JB
presented his evidence first. That is consistent with our statement in Hansen that the
“burden of producing evidence appropriately is assigned to the party seeking relief.”
Id.2 In its written decision, however, the district court placed the burden of persuasion
squarely on JB. We established in Hansen that the burden of persuasion in transfer
motions is assigned to the State. Id. at 824. The district court’s failure to assign the
burden of persuasion to the State in this case was error.

[¶11] The State contends that the district court’s decision should be affirmed for two
principal reasons. First, the State asserts that JB did not object to the burden of
persuasion assigned by the district court, and therefore waived his objection. The State
did not cite any authority indicating that the correct allocation of the burden of proof can
be waived. Our cases involving waiver tend to deal with the waiver of constitutional


2
  Many commentators and courts, including this Court, have defined the term burden of production in
various ways. For example, in addition to our explanation in Hansen, we have said that the burden of
production “is also known as the burden of producing evidence or going forward with the evidence. The
burden involves the obligation of a party to present, at the appropriate time, evidence of sufficient
substance on the issue involved to permit the fact finder to act upon it.” Joyner v. State, 2002 WY 174,
¶ 18, 58 P.3d 331, 337 (Wyo. 2002). Rather than attempting another definition here, we will merely
clarify that the party bearing the burden of production is the party that will lose if he produces no
evidence to support his assertion. See generally John T. McNaughton, Burden of Production of Evidence:
A Function of a Burden of Persuasion, 68 Harvard L. Rev. 1382 (1955).




                                                   5
rights. E.g., Craft v. State, 2011 WY 142, ¶ 12, 262 P.3d 1253, 1256 (Wyo. 2011)
(waiver of right to counsel); Barker v. State, 2005 WY 20, ¶ 16, 106 P.3d 297, 301 (Wyo.
2005) (waiver of right to testify); Bush v. State, 2003 WY 156, ¶ 6, 79 P.3d 1178, 1181
(Wyo. 2003) (waiver of right to appeal).

[¶12] Moreover, in Craft, Barker, Bush, and other cases, we have consistently indicated
that waivers must be knowing and voluntary to be valid. There is no indication in this
case that JB made a knowing and voluntary waiver. The record reflects that the issue was
not discussed by either party in their pleadings or oral arguments, or by the district court
until it issued its order. Until the district court issued its decision, JB had no knowledge
of how the burden of persuasion was being allocated. The State relies upon a brief
exchange during the hearing to support its claim of waiver. At one point in the hearing,
the prosecutor asserted that JB “has got the burden of persuasion today.” However, that
was in the broader context of an objection to JB’s attempt to call the State’s expert as a
witness. In context, the prosecutor’s brief reference to the burden of persuasion was not
sufficient to demonstrate that JB voluntarily and knowingly waived the issue.

[¶13] Second, the State asserts that where “Wyoming statutes do not assign either party
the burden of persuasion, this Court has held that it ‘may be judicially or legislatively
assigned.’” Hansen, 904 P.2d at 823. “In this case,” the State continues, “the district
court’s decision letter showed that it assigned JB the burden of persuasion – as this Court
allows it to do.” Our statement in Hansen that burdens may be judicially or legislatively
assigned meant that if the legislature does not assign a burden, a court may do so.
Because the Wyoming Juvenile Justice Act did not assign burdens of proof legislatively,
we did so judicially, placing the burden of persuasion in motions to transfer on the State.
Contrary to the State’s argument, once this Court has judicially assigned a burden of
persuasion, district courts may not disregard that precedent and reassign the burden on a
case-by-case basis.

[¶14] Because the issue of the burden of persuasion is dispositive, we need not resolve
JB’s other issues. Most of the remaining issues may be fairly characterized as objections
to the way the district court evaluated the statutory factors set forth in Wyo. Stat. Ann.
§ 14-6-237(b). The weight to be given these factors is a matter “within the sound
discretion of the court.” Hansen, 904 P.2d at 824. Because the district court will need to
re-weigh these factors on remand, it serves little purpose to review how it weighed them
previously.

[¶15] One issue raised by JB, however, deserves further comment. One of the statutory
factors to be considered when deciding a motion to transfer is the “seriousness of the
alleged offense to the community and whether the protection of the community required
waiver.” Wyo. Stat. Ann. § 14-6-237(b)(i). Four separate times in its decision, the
district court repeated that “There are no crimes more serious than ‘violent felony’ crimes
in Wyoming.” In his brief, JB asserts that:


                                             6
              The problem presented with the district court’s repeated
              statement that “there are no crimes more serious than ‘violent
              felony’ crimes” is that it has become a conclusion of law
              overwhelming all other considerations. It is also that the
              court has stopped assessing the alleged conduct of [JB] and
              replaced that with an assessment of the statutes he is alleged
              to have violated with that conduct.

[¶16] We note again that the weight to be given the statutory factors is within the sound
discretion of the district court. However, the seriousness of the alleged offense is only
one of many statutory factors to be considered when deciding a motion to transfer a case
from district court to juvenile court. Undue weight should not be given to any single
factor. Wyoming’s Juvenile Justice Act provides that cases “in which the minor has
attained the age of fourteen (14) years and is charged with a violent felony” may be
brought either in the district court or in the juvenile court. Wyo. Stat. Ann. § 14-6-
203(f)(iv). This is a clear signal from the Wyoming Legislature that not all minors
fourteen or older who are charged with violent felonies should be prosecuted in adult
criminal court. The fact that a minor is charged with violent felonies does not preclude
his case from being adjudicated in juvenile court.

[¶17] The district court’s denial of JB’s motion to transfer his case from district court to
juvenile court is reversed. The case is remanded to the district court for further
proceedings consistent with this opinion.




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