                                              No.     89-052

                        I N THE SUPREME COURT O THE STATE O M N A A
                                               F           F OTN

                                                    1989




I N THE MATTER O        F
B.J.,  a Youth Under t h e
Age o f E i g h t e e n .




APPEAL F O :
        R M              D i s t r i c t Court of t h e Twentieth J u d i c i a l ~ i s t r i c t ,
                         I n and f o r t h e County o f Lake,
                         The Honorable C .       B.    ~ c ~ e i Judge p r e s i d i n g .
                                                                  l ,


COUNSEL O RECORD:
         F

            For Appellant:

                         Timothy J . Lape, P o l s o n , Montana

            F o r Respondent:

                         Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , Montana
                         P a u l D . J o h n s o n , A s s t . A t t y . G e n e r a l , Helena
                         L a r r y N i s t l e r , County A t t o r n e y ; R o b e r t Anderson, Deputy,
                         P o l s o n , Montana




                                                    S u b m i t t e d on B r i e f s :   July 20,   1989
                    C-                                 Decided:          O c t o b e r 1 7 , 1989
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Justice William E. Hunt, Sr. delivered the opinion of the
Court.


     B. J., a youth under the age of eighteen, appeals from
the transfer of jurisdiction over his robbery charge under 5
45-5-401 (1)(b), MCA, and his felony assault charge under S
45-5-202 (2)(b), MCA, from Youth Court to the District Court
of the Twentieth Judicial District, Lake County, pursuant to
5 41-5-206, MCA. We affirm.
     The   issue   raised   on   appeal   is   whether   substantial
credible evidence supported the District Court's order
transferring jurisdiction from Youth Court to District Court.
     On December 6, 1988, B.J. and two accomplices were
alleged to have robbed the Holt family at gunpoint in
violation of 5 45-5-202(2) (b), MCA, and S 45-5-401(1) (b),
MCA. Youth Court petitions were filed on December 7, 1988,
and January 4, 1989, which charged B.J. with the offenses.
Also on January 4, 1989, the State filed a motion to transfer
the cause to District Court under 5 41-5-206, MCA. A hearing
on the motion was held on January 23, 1989. ~estimony and
evidence detailing the events of December 6, 1988, were
presented at the hearing.
     Holt, the robbery and assault victim, testified that on
December 6, 1988, three men approached his home by driving a
vehicle up his driveway, across his lawn, and up to his back
door. Holt testified that his home was without lights due to
a power outage that evening. Holt walked out of his home to
investigate and was greeted by a man, he later identified as
B.J., who placed a shotgun to Holt's head.         Holt then
testified that he inquired as to the seriousness of the
situation to which B.J. replied, "God damn serious," and that
they were going to kill Holt.
     The three men then ordered Holt to tell his wife to open
the door to the Holt residence or they would kill her. The
Holts' two young children were also in the home.      The men
entered the darkened home, tore the telephone off the wall
and demanded "drugs, money, and the keys to your car." Holt
testified that he gave the men his wallet, told them that he
did not have any drugs, and told them that the keys to his
car were in the ignition. Holt started his car for the three
men, who drove off in it leaving their original vehicle
behind.   Holt stated that during the entire ordeal, he was
held at gunpoint and repeatedly threatened with his life.
     Sheriff's detective Michael Walrod testified at the
hearing   that he   arrived   at  the Holt residence at
approximately 12:30   a.m.  shortly after the three men
departed. He ran a check on the vehicle abandoned by the
threesome and discovered that it was registered to B.J.'s
mother. A sheath knife and a club was found therein.
     Sanders County Sheriff Bill Alexander testified that on
December 7, 1988, he stopped the stolen Holt vehicle after
receiving a dispatch report of an armed robbery.     He then
arrested the occupants. A search of the vehicle revealed a
military sheath knife, a sheath knife, 20 gauge shotgun
shells, a .22 caliber pistol, and a shotgun.     The weapons
found in the vehicle were introduced as the State's exhibits
during the transfer hearing.
     The chief juvenile probation officer for Lake County,
David McDougall, testified as to his current file on B. J.,
stating that B.J. was seventeen years old at the time of the
offense; that in 1983, B.J. was on juvenile probation for
burglary; that B.J. was charged repeatedly with theft in
1986; that B.J. was placed unsuccessfully in youth homes from
October 1986 through February 1988; that B.J. was expelled
from high school in 1987; and, that in January 1988, B.J. was
charged with intimidation and other minor offenses for which
he was adjudged delinquent by the Youth Court in March of
1988. McDougall further testified that B.J. was ordered to
pine Hills School for boys for a 45 day psychological
evaluation, which resulted in a negative report. McDougall
stated that in his opinion, B.J. would not be an appropriate
candidate for the Pine Hills School because he was too
advanced in age, his criminal record was too serious, and he
was too mature for the programs offered at the facility.
     The deputy superintendent for program group living a t
pine ~ i l l s , Don Lee, also testified at the hearing.   He
stated that given the serious nature of B.J.'s criminal
record, he would oppose B.J.'s placement in pine ills School
and, that the only institution suitable for placement of R.J.
would be the state prison.
     Upon consideration of the testimony and the evidence
submitted, the court granted the State's motion to transfer
to District Court.         B.J. argues that the motion was
improperly granted because it was not predicated on
substantial credible evidence. We disagree.
     Section 41-5-206, MCA, sets forth, in part, the
requirements which must be met before a Youth Court case can
be transferred to District Court as follows:

    (1)   After a petition has been filed alleging
    delinquency, the court may, upon motion of the
    county attorney, before hearing the petition on its
    merits, transfer the mztter of prosecution to the
    district court if:


    (a)(ii) the youth charged was 16 years of  or
    more at the time of the conduct alleged to be
    unlawful and the unlawful act is . . .
      (C) aggravated or      felony assault as defined       in
      45-5-202;
      (D)   robbery as defined in 45-5-401;


      (dl the court finds upon the hearing of all
                                             -
      relevant evidence that there is probable cause to
      believe that:
      (i) The     youth   committed     the   delinquent    act
      alleged;

      (ii) the seriousness - - offense and protection
                           of the
      of the communitv reauire treatment of the vouth
      beyond that affordedA by juvenile facilities and

      (iii) the alleged offense was committed in an
      agqressive, -     -
                    violent, or premeditated manner.
      (Emphasis ours. )
The statute also provides that the court may consider the
sophistication and maturity of the youth as well as his
record and previous history.
     Here, the statutory requirements of 5 41-5-206, MCA,
were met.   B. J. is seventeen years old, is alleged to have
committed both felony assault and robbery, and the court
found that the evidence presented at B.J.'s hearing was
sufficient to establish probable cause as required under the
statute.
      The court's findings of fact provided the following:
      The seriousness of the offenses alleged and the
      protection of the community require treatment of
      the youth beyond    that afforded by    juvenile
      facilities.
The   finding    was   supported   by   the   court's   comments   as
reflected in the transcript.    The court stated that the
seriousness of the offenses were beyond treatment available
in juvenile facilities of the state and that the only
alternative to being placed in the state prison would be to
place B.J.   on probation, which has proved to fail in the
past.
     substantial credible evidence supported the court's
findings.   At the transfer hearing, testimony and evidence
was presented. As previously noted, Holt, the robbery and
assault victim, testified as to the events of December 6,
1988, and identified B.J. as one of the perpetrators; a.
sheriff's detective testified as to his investigation of the
crime in which weapons were found in the perpetrator's
abandoned vehicle; the Sanders County sheriff testified as to
the arrest of B.J. and his accomplices; the subsequent search
of Holtls stolen vehicle revealed various weapons (the
weapons were introduced as the State's evidence during the
transfer hearing) ; the chief juvenile probation officer for
Lake County testified as to B. J. Is criminal history and to
the negative test results of B.J.'s psychological evaluation;
and the deputy superintendent for program living at pine
Hills testified that he would oppose B.J.'s placement at the
facility. We hold that the testimony and evidence submitted
during the transfer hearing was substantial and credible.
The transfer of jurisdiction from Youth Court to District
Court was proper.
     Affirmed.
