No 

No. 97-240

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 113

294 Mont. 367

982 P.2d 421

STATE OF MONTANA, 

Plaintiff and Respondent, 

v.

MARY KAY SPINA, 

Defendant and Appellant. 

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APPEAL FROM: Youth Court and District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

Honorable Thomas M. McKittrick, Judge Presiding (Youth Court). 

COUNSEL OF RECORD:

For Appellant:

Kenneth R. Olson, Attorney at Law, Great Falls, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler, 

Assistant Attorney General, Helena, Montana 

Brant Light, County Attorney; Mike Rausch, Deputy County

Attorney, Bozeman, Montana 

Submitted on Briefs: January 28, 1999

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Decided: May 27, 1999

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

¶1. This case against Defendant, Mary Kay Spina (Spina), was transferred by the 

Youth Court to the Eighth Judicial District Court, Cascade County, where she was 

tried as an adult and convicted of negligent homicide in the shooting death of her 

father, Richard Spina. Spina appeals the Youth Court's waiver of its jurisdiction 

over her case and the resulting sentence imposed by the District Court. We affirm. 

ISSUES

¶2. 1. Did the Youth Court err in waiving its jurisdiction over Spina and transferring 

her case to the District Court where she was tried as an adult? 

¶3. 2. Do the transfer provisions of § 41-5-206, MCA (1995), violate Spina's right to 

equal protection under the law?

¶4. 3. Do the juvenile transfer procedures of the Montana Youth Court Act violate 

Spina's rights under Article II, Section 15, of the Montana Constitution?

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BACKGROUND

¶5. On April 25, 1996, Spina shot and killed her father inside the family's home on 

Malmstrom Air Force Base. At the time of the shooting Spina was fourteen years old. 

Earlier that evening, Spina's father had grounded her for coming home late. At 

approximately 11:15 p.m., Spina received a telephone call from her friend, Chris 

Cote. Spina told Cote she was upset with her father. She told him she was going to 

shoot her father with the 9 mm handgun she had under her pillow and then flee to 

New York to live with her brothers. Believing she was sincere and wanting to distract 

her from this course of action, Cote suggested that Spina meet him at a local hangout 

later that night, and she agreed. 

¶6. Shortly thereafter, Spina descended the staircase of her home carrying a loaded 9 

mm handgun in her pocket and various other items stowed inside a backpack. When 

Spina told her father she was leaving, he attempted to restrain her and an argument 

ensued. At some point during the course of this confrontation, Spina fired the gun, 

shooting her father in the abdomen. She then fled the house on foot. 

¶7. Richard Spina placed a call to the county 911 dispatcher to request assistance, 

and two security officers from Malmstrom Air Force Base were dispatched to his 

house. Richard was conscious upon the officers' arrival and reported to them that he 

had been shot by his daughter. 

¶8. After fleeing the residence, Spina ran to a nearby bowling alley. One of the 

bowling alley employees, Kenneth Cyr, noted that Spina was visibly upset and 

questioned her regarding the cause of her distress. Spina told him she had just shot 

her father. Cyr notified the police. He also took the 9 mm gun from Spina and placed 

it behind the reception counter. The police arrived, and Spina was taken into 

custody. Her father later died as a result of the gunshot wound. 

¶9. Spina was charged before the Cascade County Youth Court with being a 

delinquent youth for the commission of the offense of deliberate homicide in the 

death of her father. Prior to her arraignment, the State filed a motion to have the 

case transferred from the juvenile court to the district court where Spina would be 

tried as an adult. The State also moved for a psychological evaluation of Spina by a 

court-appointed psychiatrist prior to the transfer hearing, and this motion was 

granted. After conducting an evidentiary hearing on the State's motion to transfer, 

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the Youth Court waived its jurisdiction, and Spina's case was transferred to the 

District Court. In the District Court, Spina was tried by a jury and convicted of 

negligent homicide. 

¶10. The District Court sentenced Spina to the Department of Corrections (DOC) for 

a term of twenty years. However, Spina's sentence was suspended upon condition 

that she enroll immediately in a residential therapeutic treatment facility at her own 

expense, as well as a number of other conditions. Spina appeals the transfer of her 

case by the Youth Court and the resulting sentence imposed by the District Court. 

DISCUSSION

¶11. 1. Did the Youth Court err in waiving its jurisdiction over Spina and 

transferring this case to the District Court where Spina was tried as an adult? 

¶12. We review the transfer of a juvenile from the youth court to district court to 

determine whether the youth court abused its discretion. Matter of J.K.C. (1995), 270 

Mont. 342, 344, 891 P.2d 1169, 1171. With regard to specific findings of fact relied on 

by the youth court in transferring the case, the standard of review is whether such 

findings are clearly erroneous. Matter of J.D.W. (1994), 267 Mont. 87, 91, 881 P.2d 

1324, 1327. A finding is clearly erroneous where it is not supported by substantial 

evidence, the court has misapprehended the effect of the evidence, or our review of 

the record convinces us that a mistake has been committed. Interstate Prod. Credit 

Ass'n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We review a lower 

court's conclusions of law to determine whether its conclusions are correct. Steer, 

Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶13. The version of the Montana Youth Court Act in force at the time of Spina's 

transfer authorizes the youth court to transfer a juvenile to district court for 

prosecution if the youth is twelve or more years of age, the alleged conduct falls 

within one of several specified categories of offenses, including deliberate homicide as 

defined in § 45-5-102, MCA (1995), and the youth court finds, upon hearing all the 

relevant evidence, that there is probable cause to believe that: 

(i) the youth committed the delinquent act alleged;

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(ii) the seriousness of the offense and the protection of the community require treatment of 

the youth beyond that afforded by juvenile facilities; and

(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner. 

Section 41-5-206(1)(a) and (d), MCA (1995). 

¶14. In transferring a matter to district court, the youth court may also consider:

(a) the sophistication and maturity of the youth, determined by consideration of the youth's 

home, environmental situation, and emotional attitude and pattern of living; 

(b) the record of previous history of the youth, including previous contacts with youth 

court, law enforcement agencies, youth courts in other jurisdictions, prior periods of 

probation, and prior commitments to juvenile institutions. However, a lack of prior 

juvenile history with youth courts is not of itself grounds for denying the transfer. 

Section 41-5-206(2), MCA (1995). 

¶15. As her initial argument, Spina contends that the factual findings relied upon by 

the Youth Court are clearly erroneous in that "[t]hey are not based on a 'serious 

consideration' of all the [statutory] criteria," but rather, are little more than a 

verbatim adoption of the proposed findings submitted by the State. 

¶16. The State responds by pointing out that the record on appeal does not include a 

copy of the proposed findings of which Spina complains. The State argues that Spina 

violated Rule 9, M.R.App.P., by failing to give the State proper notice of her 

intention to raise this issue on appeal so that the relevant parts of the Youth Court 

record could be retrieved and included in the record on appeal. The State also argues 

that Spina's brief violates Rules 23(4) and 23(6)(e), M.R.App.P., because she fails to 

cite to those portions of the record which support her argument. 

¶17. We agree that Spina's assertion that the Youth Court adopted its findings 

verbatim from the State's proposed findings cannot be verified from the record 

before us. It is axiomatic that this Court will not consider evidence not contained in 

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the record on appeal, and a party's reference to evidence does not incorporate that 

evidence into the record. Johnson v. Killingsworth (1995), 271 Mont. 1, 3, 894 P.2d 

272, 273. We therefore decline to address the question of whether the Youth Court's 

findings are clearly erroneous as a result of the verbatim adoption of those findings 

from the proposed findings of fact and conclusions of law submitted by the State at 

the transfer hearing. 

¶18. Spina also contends that several of the Youth Court's findings of fact and 

conclusions of law are erroneous in that they do not accurately reflect the evidence 

presented at the transfer hearing. Specifically, Spina contends that the Youth Court's 

Finding of Fact Nos. 2, 3, 4, 5, 6, 7, 14, 15, 16, 17 and 19 and Conclusion of Law Nos. 

4, 5, 15, 20, 21, 22, 24, 26, 27, and 28 are erroneous. We address each of Spina's 

contentions in turn. 

Finding of Fact No. 2 

¶19. Finding of Fact No. 2 was written by the Youth Court as a narrative description 

of the events which occurred on April 25, 1996, relative to the shooting death of 

Richard Spina. Spina does not contest any of the findings contained in the Youth 

Court's narrative. Rather, she contends that Fact No. 2 is clearly erroneous in that it 

omits important facts which "present[] a much different view of [Spina] than that of 

the cold-blooded psychopath." More particularly, Spina argues that the court's 

findings fail to refer to the testimony of Ken Cyr and Cascade County Deputy 

Sheriffs St. Onge, Dalke and Antonich regarding Spina's appearance of remorse and 

concern for her father shortly after the shooting. 

¶20. The testimony of Ken Cyr which Spina contends should have been relied on and 

included in the Youth Court's determination of Finding of Fact No. 2 is as follows: 

Q: Did she express concern about her dad?

A: Yes. 

Q: And in fact, you said in your statement at the end that "She expressed remorse and 

concern that she may have killed her father as we talked." That's what you wrote down?

A: Yes. 

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Q: And this was moments after it had occurred, the incident had occurred, or a short while 

after it had occurred, she was meeting with you? 

A: That comment that I got from her mostly came I would say right before the deputies 

came and while they were there. And I remember asking one of the deputies, "Is there 

some way we can find out the condition of her father, because I think if she knew how he 

was she would be able to talk with us more."

. . . 

Q: She didn't appear happy about the fact that --

A: No.

Q: -- that this occurred? 

A: Oh, no. 

Q: She didn't appear to be coldhearted about it or uncaring about it? 

A: I didn't think so at all. 

Q: And you thought she was expressing genuine remorse and concern about what had 

occurred? 

A: Yes. 

¶21. The testimony given by Officer St. Onge that Spina contends was disregarded 

by the Youth Court in its Finding of Fact No. 2 is as follows: 

A: At that time I asked her if she was all right. And she stated, "Is my father still alive?" 

At which time I told her that he was conscious when we loaded him into the ambulance 

and that's all I knew. 

. . . 

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Q: My understanding of the first words that she spoke to you was she asked you about her 

dad and the condition of her dad? 

A: That's correct. 

Q: That was the first words out of her mouth, at least to you? 

A: Right. When I asked her if she was all right. 

Q: Did she appear to be concerned about the condition of her dad? 

A: Well, she was crying and that. And she asked if he was still alive. But that's basically it. 

. . . 

Q: Mr. Cyr indicated that he thought she was remorseful and concerned about the 

condition of her dad. Would you agree or disagree with that? 

A: All I know is she just asked the one time about her father in my presence. 

¶22. The testimony given by Officer Dalke with regard to her impression of whether 

Spina expressed remorse or concern over the condition of her father is as follows: 

Q: Did she ask about her dad? 

A: She didn't ask me about her father, no. 

Q: Did you hear her ask anyone else?

A: Not that I believe. 

¶23. The testimony of Officer Antonich with regard to his first interview with Spina 

included the following: 

Q: Did you attempt to find out what the problem was? 

A: Yes. I asked her what happened. 

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Q: What did she respond to you? 

A: She told me that she had shot her dad. 

Q: Did she tell you anything else? 

A: Let me look here. She stated that she hated him. And she kept asking if he was dead.

¶24. We disagree with Spina's contention that Finding of Fact No. 2 is clearly 

erroneous in that it "ignores" the "important evidence" presented by these 

witnesses. Our review of the record reveals conflicting evidence regarding whether 

Spina expressed remorse and concern for her father upon her apprehension by law 

enforcement officials. It is within the domain of the trial court to resolve conflicts in 

the evidence based on its assessment of the demeanor and credibility of the witnesses 

before it, and this Court will not resolve such conflicts on appeal. Matter of T.N.

(1994), 267 Mont. 81, 85, 881 P.2d 1329, 1332. We therefore conclude that the Youth 

Court's Finding of Fact No. 2 is not clearly erroneous. 

Finding of Fact No. 3

¶25. In Finding of Fact No. 3 the Youth Court found that Spina had planned the 

confrontation which ultimately led to her father's death. Spina argues that this 

conclusion is inconsistent with the evidence and fails to address facts indicating the 

shooting was an accident, or alternatively, was performed by Spina in self-defense. 

The evidence to which Spina refers includes testimony by Spina and her mother that 

Spina's father had verbally abused Spina in the past and had hit Spina on four or 

five prior occasions; the testimony of Spina's mother that Spina would have been 

scared of a confrontation with her father; the testimony of an expert in clinical 

psychology that in normal instances of patricide by an abused child, the child 

"sneaks up" on the parent rather than confronting the abuser directly and that, in 

his opinion, Spina is extremely impulsive and incapable of long-term planning of 

such a confrontation; and Spina's statements to clinical evaluators that the shooting 

was an accident.

¶26. We hold that there is sufficient evidence in the record to support the Youth 

Court's finding that Spina's confrontation with her father was planned. It was the 

testimony of Chris Cote that at approximately 11:15 p.m. on the night of the 

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shooting, Spina told Chris she was upset with her father because he had grounded 

her and that she was going to shoot him so she would not have to put up with him 

anymore. 

¶27. Additionally, the clinical psychologist who testified that, in his opinion, Spina 

was incapable of long-term planning for such a confrontation also testified that Spina 

knew a confrontation with her father could have been avoided by leaving directly 

from school the following morning, but that instead she chose to force a 

confrontation with her father that evening. 

¶28. Moreover, a memo book found in Spina's backpack on the night of the shooting 

contained a listing of items Spina intended to take with her when she left home. This 

list included a 9 mm handgun, money, checks, "a big ass knife," condoms, credit 

cards and plane tickets. The memo stated that she wished to "get away from it all" 

and that her final destination would be New York. The memo also stated that Spina 

"might - kill someone."

¶29. Finally, the evidence in the record shows that sometime prior to the events of 

April 25, 1996, Spina had retrieved a loaded 9 mm handgun from her father's 

bedroom and hid it under her pillow. Before descending the stairs to leave the house 

that night, Spina cocked the gun and placed the weapon in her pocket. 

¶30. Again, it is the duty of the trier of fact to resolve any conflicts in the evidence 

before it, and this Court will not reweigh evidence on appeal. T.N., 267 Mont. at 85, 

881 P.2d at 1332. Despite the evidence which Spina cites to the contrary, there is 

sufficient credible evidence in the record to support the Youth Court's finding that 

Spina planned the confrontation which ultimately led to her father's death. 

Moreover, we conclude that the Youth Court did not misconstrue the effect of the 

evidence before it in failing to find that the shooting was accidental or performed in 

self-defense, as Spina asserts. We therefore hold that Finding of Fact No. 3 is not 

clearly erroneous. 

Finding of Fact No. 4 

¶31. Finding of Fact No. 4 by the Youth Court reads as follows: 

The Youth made several statements to Dr. Scolatti which are noted in his report. These 

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statements indicate planning, premeditation, and deliberation. They indicate that the 

motive was because her father got in her way.

¶32. Spina argues that Finding of Fact No. 4 is erroneous for a number of reasons. 

First, Spina contends that this Court "is left to guess as to which statements, 

attributed to Dr. Scolatti, the court is referring;" and second, she contends that Dr. 

Scolatti's report does not support the Youth Court's conclusions regarding Spina's 

motive. 

¶33. With regard to Spina's argument that Dr. Scolatti's report does not contain any 

statements made by her which indicate planning, premeditation and deliberation, the 

following dialogue is quoted from Dr. Scolatti's report: 

Scolatti: Why didn't you just wait until your dad slept to get out of the house? 

Spina: I don't know. I just wanted to leave then. 

Scolatti: Why did you feel you needed a gun? 

Spina: Because he wouldn't let me leave. 

Scolatti: Why not just wait until the morning and then take off from school? 

Spina: I wanted to leave now. I thought about it, but I just had to leave now. 

Scolatti: Why did you just have to leave now? 

Spina: I felt scared, I don't know why, I was just scared. 

Scolatti: What were you afraid of? 

Spina: I don't know, like I said, just everything came back, I don't know. 

Scolatti: When did you cock the gun? 

Spina: In my room, when I was packing. 

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¶34. The Youth Court determined that the statements made by Spina in the course of 

her evaluation by Dr. Scolatti indicated Spina acted with planning, premeditation, 

and deliberation during the events preceding the shooting death of her father. We 

conclude that there is substantial evidence in the record to support such a conclusion 

and that this finding is not otherwise clearly erroneous.

¶35. With regard to Spina's contention that Dr. Scolatti's report does not support the 

Youth Court's finding regarding Spina's motive in shooting her father, we note that 

the court's conclusion that Spina killed her father because he "got in her way" more 

closely mirrors the conclusions of Dr. Mendenhall, the court-appointed psychiatrist, 

who reported as follows: 

I believe that she killed Richard Spina because he was no longer useful to her; that he had 

become a net detriment rather than a net advantage. I believe that this is consistent with 

her overall personality structure, and I believe that she is dangerous for this reason. 

However, in answering one of the questions referred to him by Spina's attorney, Dr. 

Scolatti also addressed the issue of Spina's intent on the evening of April 25, 1996:

3. Did Ms. Spina have the capacity to act knowingly and purposely at the time of the 

offense?

Yes. Ms. Spina was aware of the gun and her stated purpose was to threaten her father 

with it in order to leave the house[.]

¶36. Without addressing whether the Youth Court's findings regarding Spina's 

purpose for confronting and ultimately shooting her father are best attributed to the 

conclusions of Dr. Mendenhall or the conclusions of Dr. Scolatti, we hold that there is 

substantial credible evidence in the record to support the finding that Spina acted in 

a premeditated manner during the commission of the offense and that Finding of 

Fact No. 4 is not otherwise clearly erroneous. 

Finding of Fact No. 5

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¶37. In Finding of Fact No. 5 the Youth Court stated that it "considered the 

sophistication and maturity of the Youth as determined by consideration of the 

Youth's home, environmental situation, emotional attitude and pattern of living." 

The court then went on to find that Spina's home environment had been "good 

enough" to foster normal child development; that Spina had not suffered from sexual 

abuse; that the physical abuse to which Spina had been subjected was limited to four 

or five occasions of being hit, but that no abuse had occurred within the year 

preceding the shooting; that Richard Spina had loved and supported his daughter 

and had set usual disciplinary limits regarding homework, curfew, house chores, etc.; 

that Spina had suffered from sporadic verbal abuse by her father; that both Spina 

and her mother admitted Spina was generally "spoiled" and received most of the 

things she wanted; that Spina's father and mother had engaged in verbal fights and 

that the primary stress factor in the family had been financial; that Spina's mother 

had been absent from the family while working in Alabama to earn a greater income 

and had been delayed in her return to the family; that Spina's environment had 

included other family, friends, and social activities; that Spina had demonstrated an 

average academic performance; that since her arrest, Spina's record of behavior at 

the juvenile detention center had not been exemplary; and finally, that Spina's family 

history did not reflect the pattern of egregious abuse normally found in severely 

disordered children. 

¶38. Spina argues that Finding of Fact No. 5 is clearly erroneous in that it ignores the 

unanimous opinion of the psychological experts in this case that Spina is not very 

mature or sophisticated and that she should not be incarcerated in an adult facility 

for that reason; it ignores the testimony of a DOC juvenile parole officer that in at 

least one other instance, a female juvenile offender who was tried as an adult was 

sentenced to the women's correctional facility upon conviction; it ignores the fact 

that Spina did not possess the same level of prior criminal and clinical history as the 

other female juvenile offender sentenced to the women's correctional facility; and it 

ignores the testimony of Spina's teachers, friends and neighbors that prior to 

shooting her father, Spina was a normal fourteen year old girl with normal social 

contacts and no history of abusive or disruptive behavior. 

¶39. As an initial matter, we note that § 41-5-206(2), MCA (1995), permits, but does 

not require, consideration of a youth's maturity and sophistication in determining 

whether to transfer a juvenile to district court. Although the Youth Court indicated 

in its order that it had considered Spina's sophistication and maturity as determined 

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by what it found to be the condition of Spina's home and social environment, Finding 

of Fact No. 5 does not expressly state any findings by the Youth Court with regard to 

Spina's level of maturity or sophistication. 

¶40. Our review of the record demonstrates that insofar as the individual findings 

contained in Finding of Fact No. 5 relate to Spina's home and social environments, 

these findings are supported by substantial credible evidence and are not otherwise 

clearly erroneous. We further hold that the Youth Court's failure to specifically set 

forth findings regarding Spina's level of maturity or sophistication does not 

constitute reversible error under the plain language of § 41-5-206(2), MCA (1995).

¶41. With regard to whether the Youth Court erred in ignoring evidence of the prior 

prosecution and incarceration of another female juvenile offender who was sentenced 

to the women's correctional facility, we hold that this evidence was not pertinent to a 

discussion of either Spina's level of maturity or the condition of her home and social 

environments and so was properly disregarded by the Youth Court in Finding of 

Fact No. 5. 

Finding of Fact Nos. 6 and 7 

¶42. In Finding of Fact Nos. 6 and 7, the Youth Court stated its findings regarding 

Spina's emotional and mental health based on the psychological evaluations of Drs. 

Mendenhall and Scolatti. In its findings, the Youth Court accepted the diagnosis and 

recommendations of these experts and determined that the evaluations were 

substantially consistent with one another. The Youth Court found that both 

evaluators had noted Spina's lack of affect in discussing the death of her father; both 

had noted her lack of insight into her behavior and its consequences; and both 

evaluators had concluded that Spina constituted a danger to her community. Both 

evaluators had also opined that there was some probability of reoffense; however, 

while Dr. Mendenhall's prediction of reoffense was certain, Dr. Scolatti declined to 

put a quantitative figure on that probability. The court also found that both 

evaluators had observed behaviors consistent with a borderline personality disorder, 

although each agreed that a definitive diagnosis of such a disorder could not be made 

at that time due to Spina's adolescence. 

¶43. Spina disputes the Youth Court's finding that the diagnoses and 

recommendations of these evaluators were consistent, asserting that such a finding is 

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"patently erroneous." Spina contends that Dr. Scolatti's evaluation differed 

substantially from that of Dr. Mendenhall on a number of issues, including the 

severity of Spina's conduct disorder, her treatability, recommendations as to 

placement, and whether a provisional diagnosis of borderline personality disorder is 

appropriate in an adolescent patient. 

¶44. Our review of the record reveals that although the diagnoses and 

recommendations of these experts were not identical, the court's characterization of 

the evaluations as consistent is not "patently erroneous" as Spina contends. The 

record plainly supports the finding that both professionals diagnosed Spina with a 

conduct disorder. The record also plainly supports the finding that both evaluators 

noted symptomatology indicative of a borderline personality disorder, although both 

experts prefaced their conclusions with a caveat that such a diagnosis would not be 

appropriate in the case of a child under eighteen. The record also reflects the 

recommendation of both professionals that Spina receive treatment in a secure 

setting for a number of years, followed by continued supervision on an outpatient 

basis. Neither expert recommended incarceration in an adult penal institution as an 

ideal placement, and yet both evaluators expressed concern over the limited duration 

of a secure placement within the juvenile system. 

¶45. Because there is substantial credible evidence in the record to support the Youth 

Court's findings and these findings are not otherwise clearly erroneous, we will not 

disturb Finding of Fact Nos. 6 and 7.

Finding of Fact No. 14

¶46. In Finding of Fact No. 14, the Youth Court found that Spina had no prior arrest 

record, but that she had self-reported to the mental health professionals in this case 

several misdemeanor thefts. The Youth Court also found that Spina had once run 

away from home and that she had been investigated in 1996 in relation to a 

misdemeanor theft from a neighbor's home. Spina contends that while these findings 

are facially correct, they are nevertheless clearly erroneous in that they constitute a 

disingenuous attempt by the Youth Court to assign her with criminality which she 

does not possess. 

¶47. Because Spina does not contest the accuracy of the findings made by the Youth 

Court, and our review of the record reveals that the findings regarding Spina's 

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admission of prior transgressions are not clearly erroneous, we will not disturb the 

Youth Court's Finding of Fact No. 14. 

Finding of Fact No. 15

¶48. In Finding of Fact No. 15, the Youth Court found, in accordance with the 

testimony of Dick Boutilier, chief juvenile probation officer for the Eighth Judicial 

District, that if Spina were tried in the juvenile system and committed to the custody 

of the DOC, the DOC would attempt to place her in a secure therapeutic setting. Also 

in accordance with the testimony of Boutilier, the Youth Court found that there are 

two out-of-state facilities with whom the State could contract for secure therapeutic 

placement for Spina, but that the DOC could not guarantee that if Spina were 

committed to its custody as a juvenile offender, it would place her in either of these 

facilities, or that the length of stay in either institution would be adequate to 

successfully rehabilitate her.

¶49. Spina contends that these findings are erroneous in that they fail to include 

portions of Boutilier's testimony in which he stated that there are more treatment 

options available in the juvenile system than in the adult system, that he had some 

concern regarding Spina's incarceration in an adult facility; that if Spina were 

convicted as an adult and sentenced to the custody of the DOC, they would likely 

place her in the women's correctional facility; and that at least one of the contract 

facilities for female juvenile offenders had already been contacted and indicated they 

would be willing to accept Spina into their program if she were convicted as a 

juvenile. Moreover, Spina contends that although it was the recommendation of 

Boutilier that Spina be tried as an adult, this recommendation was based upon the 

conclusions contained in Dr. Mendenhall's report, which "are, for the most part, 

wrong." 

¶50. Essentially, Spina argues that the Youth Court erred in setting forth and relying 

on certain portions of a witness's testimony, but not others. We find this argument 

unpersuasive. A trial court need not recount with exacting specificity every aspect of 

a witness's testimony before it may rely upon that testimony in its findings. Spina 

cites no authority to support her position, and we decline to adopt such reasoning 

here. For these reasons, we affirm Finding of Fact No. 15. 

Finding of Fact No. 16

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¶51. In Finding of Fact No. 16, the Youth Court, in accordance with the testimony of 

Dave Peterson, a juvenile parole officer for Region III, found that if Spina were 

convicted as a juvenile, the most time she would spend in a secure therapeutic setting 

would be eighteen months, after which time she would be moved into a less 

restrictive environment and possibly even home. Also in accordance with Peterson's 

testimony, the Youth Court found that the State of Montana has a total of ten 

juvenile parole officers, only two of which serve the seventeen county region in which 

Spina would be paroled after her secure placement terminated. It was Peterson's 

testimony, and the Youth Court so found, that DOC does not have the resources to 

adequately supervise a youth such as Spina if she were paroled. 

¶52. Additionally, the Youth Court found, based on Peterson's testimony, that 

because there are no correctional facilities for female juveniles in Montana, the DOC 

must contract for secure placement of female juveniles at out-of-state facilities. 

However, because these facilities are privately owned, they may decline to enroll 

candidates who fail to meet their admission criteria and may remove a candidate at 

any time for noncompliance with program guidelines. 

¶53. Spina contends that these findings are erroneous in that they fail to include 

portions of Peterson's testimony in which he stated that because of the seriousness of 

Spina's offense, the DOC would prioritize funding for her and attempt to place her in 

a secure therapeutic setting if she were convicted as a juvenile. Peterson also testified 

that if Spina were placed on parole within his region, he would do his best to 

supervise her appropriately. 

¶54. Again, Spina bases her contention with regard to Finding of Fact No. 16 on the 

argument that the Youth Court erred in setting forth certain portions of a witness's 

testimony, but not others. For the same reasons cited above in Finding of Fact No. 15, 

we reject this argument and affirm Finding of Fact No. 16.

Finding of Fact No. 17

¶55. In Finding of Fact No. 17, the Youth Court found, based on the testimony of 

John Paradise, the juvenile residential unit manager for DOC, that 80 percent of the 

annual $862,000 residential placement budget for Region III had already been 

allocated on current shelter and foster care placements by the time of Spina's 

transfer hearing in July 1996. As a result, the DOC had less than $200,000 in its 

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budget to cover the cost of all new placements in 1996.

¶56. Spina contends that Finding of Fact No. 17 is clearly erroneous, not because of 

what is contained in the finding, but because of what is omitted. More specifically, 

Spina argues that the Youth Court failed to include portions of Paradise's testimony 

regarding the likelihood that Spina would be placed in the women's correctional 

facility if she were tried as an adult, the greater variety of treatment options 

available to Spina in the juvenile system, and the priority of funding Spina would 

receive from the DOC if she were to remain in the juvenile system. 

¶57. We hold that the Youth Court's findings regarding the fiscal status of DOC's 

juvenile residential placement budget for 1996 are not clearly erroneous as a result of 

the Youth Court's failure to include additional portions of Paradise's testimony in 

the court's findings. For the reasons stated above in Finding of Fact Nos. 15 and 16, 

we affirm the Youth Court's Finding of Fact No. 17. 

Finding of Fact No. 19

¶58. In Finding of Fact No. 19, the Youth Court found that if Spina were convicted as 

an adult, the DOC would have the option of contracting for her placement at a 

secure, therapeutic juvenile facility during the remainder of her minority. Spina 

contends this finding is erroneous, because "[w]hile this statement may be true," the 

testimony of four DOC officers was that, if convicted as an adult, Spina would be 

placed directly in the women's correctional facility and not in a juvenile facility. 

¶59. We find no error in the Youth Court's Finding of Fact No. 19, in part because 

Spina herself concedes that the finding is facially accurate, and also because the 

findings which Spina argues the Youth Court erroneously omitted from Finding of 

Fact No. 19 were effectively set forth in Finding of Fact No. 18, which reads: "DOC 

has an oral policy of sending juvenile females who are transferred to adult courts to 

the Women's Correctional Center in Billings." For these reasons, we affirm Finding 

of Fact No. 19.

Conclusion of Law No. 4

¶60. In Conclusion of Law No. 4 the Youth Court concluded that there was probable 

cause to believe that Spina committed the offense of felony deliberate homicide. 

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Spina argues that "[w]hile that conclusion is, arguably, supported by the evidence, it 

ignores certain very important evidence." The evidence which Spina contends was 

ignored by the Youth Court included Spina's own testimony that the shooting was an 

accident, the testimony of Spina's mother that Spina was very scared of her father 

when he was angry, and the conclusions of Dr. Scolatti that the emotional abuse by 

Spina's father is a mitigating factor in this instance. 

¶61. In concluding that there was probable cause to believe that Spina committed the 

offense of felony deliberate homicide, the Youth Court relied upon the underlying 

finding that the shooting was not accidental. Our review of the record reveals 

conflicting evidence on the issue of whether the shooting was deliberate or accidental. 

It was the duty of the Youth Court to resolve those conflicts, and we will not reweigh 

this evidence on appeal. Matter of T.N., 267 Mont. at 85, 881 P.2d at 1332. Because 

there is substantial credible evidence to support the Youth Court's finding, and the 

finding is not otherwise clearly erroneous, we will not disturb this finding on appeal. 

Additionally, because the findings upon which the Youth Court relied in reaching its 

conclusion were not clearly erroneous, we affirm the court's conclusion that probable 

cause existed to believe that Spina had committed the offense of deliberate homicide. 

Conclusion of Law No. 5

¶62. In Conclusion of Law No. 5, the Youth Court concluded that the offense against 

Richard Spina was committed in an aggressive, violent, and premeditated manner as 

demonstrated by Finding of Fact Nos. 2, 3, and 4. Spina contends that Conclusion of 

Law No. 5 is erroneous because it states that the offense was committed in an 

aggressive, violent and premeditated manner, rather than there was probable cause 

to believe the offense was committed in an aggressive, violent and premeditated 

manner. Additionally, Spina argues that the conclusion ignores evidence indicating 

the shooting occurred spontaneously during Spina's attempt to leave the house.

¶63. We have already concluded that Finding of Fact Nos. 2, 3, and 4, upon which the 

Youth Court relied in reaching Conclusion of Law No. 5, are not clearly erroneous. 

Moreover, we hold that the Youth Court's conclusion that the offense was committed 

in an aggressive, violent and premeditated manner satisfies the statutory 

requirement that the court find there was probable cause to believe the offense was 

committed in an aggressive, violent and premeditated manner. We therefore affirm 

Conclusion of Law No. 5.

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Conclusion of Law No. 15

¶64. In Conclusion of Law No. 15, the Youth Court concluded that the DOC cannot 

place a juvenile in an out-of-state correctional facility until funding for such a 

placement has been secured and the youth has been screened for that facility's 

admission criteria. Spina argues that these requirements were met in her case 

because the DOC juvenile residential placement manager testified that the DOC 

would prioritize funding for Spina if she were convicted as a juvenile and that at 

least one out-of-state placement facility had already screened and accepted her for 

admission. 

¶65. Although Spina contends that she satisfied the requirements for out-of-state 

placement, she does not contest the Youth Court's conclusion with regard to what 

those requirements were. We find no error in Conclusion of Law No. 15 with regard 

to the need for the DOC to secure funding and facilitate admission screening of a 

youth prior to contracting for secure placement out of state.

Conclusion of Law Nos. 20, 22 and 24

¶66. In its transfer order, the Youth Court concluded that transferring Spina into the 

adult system neither mandated incarceration nor precluded rehabilitation, and that 

while any commitment of Spina must necessarily be to the custody of the DOC, the 

DOC was not bound to incarcerate her. Spina concedes these conclusions are 

"technically true" and "theoretically correct" but argues that they are nevertheless 

"factually erroneous" based on the testimony of DOC officials that if Spina were 

sentenced to the custody of the DOC as an adult, she would likely be incarcerated at 

the women's correctional facility. 

¶67. The adult sentencing guidelines set forth in § 46-18-201, MCA (1995), provide a 

district court with a number of sentencing options, including the imposition of a 

deferred or suspended sentence with various conditions of probation. The Youth 

Court was therefore correct in concluding that upon being tried and convicted as an 

adult, Spina's incarceration would not be mandatory under the laws of Montana. 

¶68. Additionally, even if a youth were sentenced to a term of commitment by the 

district court and thereby placed into the custody of the DOC under § 41-5-206(8), 

MCA (1995), the DOC is not required to incarcerate the youth, but shall "confine the 

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youth in whatever institution that it considers proper, including a state youth 

correctional facility." This broad grant of discretionary placement power with the 

DOC allows for the possibility that even if she were convicted and sentenced as an 

adult, Spina could be placed in an in-state residential treatment facility or placed at 

an out-of-state secure juvenile facility at least during the remainder of her minority.

¶69. Despite the testimony of DOC officials regarding the likelihood of Spina being 

immediately placed at the women's correctional facility following her conviction as 

an adult, the law does not require such a result. As we stated in Matter of T.N., "[t]he 

fact that this action is being sent to the criminal justice system does not preclude 

rehabilitation and mandate incarceration. The court has other options available to it 

should [the youth] be found guilty of this crime." T.N., 267 Mont. at 86, 881 P.2d at 

1333. For this reason, we affirm Conclusion of Law Nos. 20, 22 and 24 that Spina's 

transfer neither mandated incarceration nor precluded rehabilitation. 

Conclusion of Law No. 21

¶70. In Conclusion of Law No. 21, the Youth Court concluded that the adult 

sentencing policies set forth in § 46-18-101, MCA (1995), are similar to the sentencing 

purposes of the Youth Court Act in that both statutes are designed to ensure 

rehabilitation, accountability and protection of the community. Spina argues that 

this constitutes a misstatement of the law because the declaration of purpose set forth 

in the Youth Court Act does not promote "accountability." 

¶71. One of the express legislative purposes of the Youth Court Act is to reduce 

delinquency through the use of immediate, consistent, enforceable and avoidable 

consequences for delinquent behavior. Section 41-5-102(2), MCA (1995). The act also 

recognizes the need for restitution by a delinquent juvenile in some cases. Section 41-

5-102(2), MCA (1995). The adult correctional policy of the State of Montana is set 

forth in § 46-18-101(2), MCA (1995), which reads in pertinent part: 

The correctional policy of the State of Montana is to protect society by preventing crime 

through punishment and rehabilitation of the convicted. The legislature finds that an 

individual is responsible for and must be held accountable for the individual's actions, 

including, whenever possible, the restoration of all pecuniary losses sustained by the 

victim of the offense. Corrections laws and programs must be implemented to impress 

upon each individual the responsibility for obeying the law. To this end, it is the policy of 

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the state to assure that prosecution of criminal offenses occurs whenever probable cause 

exists and that punishment of the convicted is certain, timely, and consistent. 

¶72. We hold that the Youth Court did not err in concluding that, although not 

identical, the Youth Court Act and the adult sentencing statutes have the similar 

purposes of ensuring the safety of the community through the prevention of crime, 

rehabilitating individual offenders and, when appropriate, holding individuals 

accountable for their actions through the imposition of restitutionary measures. We 

therefore affirm Conclusion of Law No. 21. Conclusion of Law Nos. 26 and 27

¶73. In Conclusion of Law Nos. 26 and 27, the Youth Court concluded that Spina was 

in need of long-term therapeutic care beyond the age of nineteen and that the 

juvenile system in Montana was woefully inadequate for the treatment of Spina given 

the seriousness of her offense and the need to protect the community. 

¶74. Spina argues that the conclusion that she is in need of secure care beyond age 

nineteen is erroneous because it is speculative and contrary to the opinions given by 

the mental health experts in this case. Additionally, Spina argues, the Youth Court 

ignored evidence which militates against such a conclusion, including her lack of a 

prior criminal record, her strong family support, the low rate of recidivism in cases 

of family homicide, and the notable improvement in her behavior at the juvenile 

detention center since she began receiving "critical incident stress" counseling from 

Dr. William Taylor. 

¶75. As an initial matter, we note that any prediction as to how long a youth may be 

in need of a particular form of care is necessarily speculative. However, the nature of 

the transfer proceedings dictate that such a prediction be attempted. It was the 

responsibility of the Youth Court to determine, based on all relevant information 

available at the time, what Spina's future treatment needs were likely to be, and we 

will not disturb the conclusions of that court on the grounds that such a prediction 

cannot be made with mathematical certainty. Moreover, we disagree with Spina's 

assertion that the Youth Court's conclusion regarding Spina's length of treatment 

was contrary to the opinions of the mental health experts in this case. 

¶76. Dr. Scolatti testified that, in his opinion, Spina would require one to two years of 

secure therapeutic treatment, followed by continuing outpatient treatment for at 

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least two more years, provided that her initial inpatient treatment was successful. Dr. 

Scolatti expressed concern that if Spina remained in the juvenile system and was not 

successful in her treatment by age nineteen, she would nevertheless be released back 

into the community where there were not sufficient resources to supervise her 

adequately. In any event, Dr. Scolatti recommended that Spina remain under court 

supervision until at least age twenty-five. 

¶77. Dr. Mendenhall testified that, in his opinion, Spina would require secure care in 

a structured environment beyond the age of nineteen. Dr. Mendenhall also opined 

that two years of outpatient treatment and supervision after release from secure care 

at the age of nineteen would be insufficient to meet Spina's treatment needs. For this 

reason, Dr. Mendenhall testified that the safety of the community necessitated 

Spina's transfer out of the juvenile system. 

¶78. Spina also argues that the juvenile system in Montana is not woefully 

inadequate to meet her treatment needs, but rather the State simply did not want to 

incur the expense of placing her at a secure out-of-state juvenile facility. Such a 

conclusion is not supported by the record. 

¶79. None of the DOC officials who testified indicated that the State was unwilling to 

fund Spina's placement at a secure juvenile treatment center out of state. To the 

contrary, John Paradise, the juvenile residential unit manager for the DOC, testified 

that due to the seriousness of the offense and other circumstances of the case, the 

DOC would prioritize the funding necessary to contract for Spina's secure placement 

in a juvenile facility. However, David Peterson, a juvenile parole officer with the 

DOC, testified that the longest Spina would likely remain in such a program was 

eighteen months, and in no case beyond the age of nineteen, when her commitment to 

the DOC would terminate by operation of § 52-5-101, MCA (1995). Peterson also 

testified that, although Spina would remain under the jurisdiction of the Youth 

Court until age twenty-one, the DOC would not be able to adequately supervise her 

probation due to the limited number of juvenile probation officers within a very 

large region and the number of cases each officer supervises. 

¶80. From this, we conclude that the Youth Court did not err in determining that 

Spina was in need of long-term secure care beyond the age of nineteen and that the 

juvenile court system in Montana is inadequate to provide for the protection of the 

community and the necessary treatment Spina requires. We therefore affirm 

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Conclusion of Law Nos. 26 and 27. 

Conclusion of Law No. 28

¶81. In Conclusion of Law No. 28, the Youth Court determined that the protection of 

the community warranted the transfer of Spina's case out of the juvenile system, 

because her amenability to treatment was speculative, and if her treatment was not 

successful during the short period of time she would remain in the juvenile system, 

she would pose a danger to the community upon her release. Spina argues that the 

Youth Court erred in concluding that Spina's amenability to treatment was 

speculative because objective evidence presented at the hearing demonstrated she 

would respond well to treatment. 

¶82. The evidence presented at the transfer hearing was conflicting with regard to 

whether Spina could be treated, and if so, whether the length of her treatment in the 

juvenile system would be sufficient to assure the safety of the community upon her 

release. Resolving conflicts in evidence is the duty of the finder of fact, and this Court 

will not reweigh evidence on appeal. T.N., 267 Mont. at 85, 881 P.2d at 1332. For this 

reason, we affirm the Youth Court's Conclusion of Law No. 28. 

¶83. In summary, we conclude that the findings of fact and conclusions of law in the 

Youth Court's transfer order were not in error. Furthermore, we conclude that there 

was probable cause to believe that Spina committed the delinquent act alleged, that 

the seriousness of the offense and the protection of the community required 

treatment of Spina beyond that afforded by the juvenile facilities, and that the 

alleged offense was committed in an aggressive, violent, or premeditated manner. For 

these reasons, we hold that the Youth Court did not abuse its discretion in 

transferring Spina's case to the District Court and we therefore affirm the Youth 

Court's waiver of jurisdiction in this case. 

¶84. 2. Do the transfer provisions of § 41-5-206, MCA (1995), violate Spina's right to 

equal protection under the law?

¶85. The Fourteenth Amendment of the United States Constitution and Article II, 

Section 4, of the Montana Constitution guarantee equal protection of the laws to all 

persons. Matter of C.H. (1984), 210 Mont. 184, 197-98, 683 P.2d 931, 941. To prevail 

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on an equal protection claim, an injured party must first be able to demonstrate that 

the law or governmental action at issue discriminates by impermissibly classifying 

persons and treating them differently on the basis of that classification. See State v. 

Tadewaldt (1996), 277 Mont. 261, 270, 922 P.2d 463, 468. 

A classification within a law can be established in one of three ways. First, the law may 

establish the classification "on its face." This means the law by its own terms classifies 

persons for different treatment . . . Second, the law may be tested in its "application." In 

these cases the law either shows no classification on its face or else indicates a 

classification which seems to be legitimate, but those challenging the legislation claim that 

the governmental officials who administer the law are applying it with different degrees of 

severity to different groups of persons who are described by some suspect trait . . . Finally, 

the law may contain no classification, or a neutral classification, and be applied 

evenhandedly. Nevertheless the law may be challenged as in reality constituting a device 

designed to impose different burdens on different classes of persons.

John E. Nowak, et al., Constitutional Law 600 (2d ed. 1983). Additionally, it is a basic 

equal protection principle that the invidious quality of a law claimed to be discriminatory 

must ultimately be traced to an impermissibly discriminatory purpose. Washington v. 

Davis (1976), 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597. 

¶86. It is well-established in Montana that a legislative enactment "is presumed to be 

constitutional and will be upheld on review except when proven to be 

unconstitutional beyond a reasonable doubt." Zempel v. Uninsured Employers' Fund

(1997), 282 Mont. 424, 428, 938 P.2d 658, 661. A party attacking the constitutionality 

of a statute bears a significant burden in establishing its invalidity. Zempel, 282 

Mont. at 428, 938 P.2d at 661. 

¶87. Spina does not argue that the juvenile transfer statute is discriminatory on its 

face. Nor does Spina argue that female juvenile offenders as a class suffer from the 

Youth Court's discriminatory application of the transfer statute. Spina does, 

however, argue that the transfer statute, as applied to her under the particular facts 

of her case, resulted in discriminatory treatment on the basis of her gender. 

¶88. The crux of Spina's argument is her assertion that the transfer of her case to the 

District Court was primarily motivated by the lack of affordable placement options 

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available for her within the juvenile system. It is Spina's contention that the lack of 

an in-state facility for girls and the State's failure to adequately fund alternative outof-state placements for female juvenile offenders generated a budgetary impediment 

to her remaining in the juvenile system. Moreover, Spina asserts, because this 

budgetary impediment exists only in relation to female juvenile offenders, she has 

been unfairly discriminated against on the basis of her gender.

¶89. Our review of the record convinces us that the waiver of the Youth Court's 

jurisdiction over Spina's case was not predicated upon the inability of the State to 

fund secure placement for her within the juvenile system. All of the juvenile DOC 

officers who testified at the transfer hearing testified that if Spina remained in the 

juvenile system, her case would receive priority and funding would be made 

available for her placement in a secure juvenile facility. The primary concern in 

Spina's case was not that no such placements were available, or that there was no 

money with which to arrange for them, but that the duration of any such placement 

would not be long enough to rehabilitate her. 

¶90. Also, the record indicates that upon her release from secure care, Spina would 

require continuing close supervision by the DOC's juvenile probation officers. 

However, evidence presented at the transfer hearing demonstrated that the quality of 

supervision required for an individual such as Spina is not available in the juvenile 

system. The record indicates this is true for all juvenile offenders, both male and 

female, so that while the difficulty in supervising Spina's probation may be spurred 

by budgetary concerns, there is no evidence these concerns are triggered on the basis 

of gender as Spina asserts.

¶91. Spina also argues that her transfer to District Court violates her right to equal 

protection because if she were convicted before the District Court and sentenced to 

the custody of the DOC as an adult, she would go directly into the adult women's 

correctional facility, whereas a male juvenile offender convicted before the District 

Court would be held at the juvenile correctional facility for boys until the age of 

majority and then placed at the adult male correctional facility. Such a placement 

policy, Spina contends, provides disparate treatment on the basis of gender and 

renders the juvenile transfer statute unconstitutional as applied to her. 

¶92. We find this argument unpersuasive for the reason that the DOC's placement 

policy with regard to juvenile offenders who have been convicted and sentenced as 

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adults has no bearing on the constitutionality of the juvenile transfer statute. Any 

difference between the disposition of a female juvenile offender and a male juvenile 

offender sentenced as adults to the custody of the DOC presupposes that both 

offenders were transferred to the district court and tried as adults. Therefore, it is 

not the application of the transfer statute by the Youth Court that generates the 

alleged disparity in treatment, but rather the placement policies of the DOC after the 

youths have been transferred, tried, and convicted as adults. 

¶93. Spina's equal protection challenge, however, is not leveled against the actions of 

the DOC in placing juvenile offenders within the adult penal system. Her argument 

focuses solely on the application of the juvenile transfer statute by the Youth Court. 

Even if Spina had challenged the placement policies of the DOC on equal protection 

grounds, it is questionable whether she would have standing to challenge those 

policies given the fact that she is not in the custody of the DOC and has not, in fact, 

been incarcerated in the women's correctional facility during the age of her minority. 

See Missoula City-County Air Pollution Control Bd. v. Board of Environmental Review

(1997), 282 Mont. 255, 260, 937 P.2d 463, 466 ("[t]he constitutional aspect of standing 

requires the plaintiff to show that plaintiff has been personally injured or threatened 

with immediate injury by the alleged constitutional or statutory violation"). Because 

the issue is not properly before us, we decline to address whether DOC's alleged 

divergent policies regarding the placement of male and female juvenile offenders 

who have been convicted and sentenced as adults offend the equal protection clause. 

¶94. We do, however, hold that § 41-5-206, MCA (1995), as applied to Spina in this 

case, did not violate her right to equal protection under the law. 

¶95. 3. Do the juvenile transfer procedures of the Montana Youth Court Act violate 

Spina's rights under Article II, Section 15, of the Montana Constitution?

¶96. Article II, Section 15, of the Montana Constitution reads: 

RIGHTS OF PERSONS NOT ADULTS. The rights of persons under 18 years of age shall 

include, but not be limited to, all the fundamental rights of this article unless specifically 

precluded by laws which enhance the protection of such persons. 

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The purpose of the provisions in Article II, Section 15, of the Montana Constitution is to 

guarantee to minors the same fundamental rights afforded to adults unless a law meant to 

protect children prohibits their enjoyment of the right. See C.H., 210 Mont. at 202, 683 

P.2d at 941. 

¶97. Spina contends that the statutory procedures for the transfer of a juvenile case 

to the District Court violate the provisions of Article II, Section 15, of the Montana 

Constitution by denying her certain fundamental rights which are accorded to adults 

under similar circumstances. In particular, Spina argues that her right against selfincrimination, her right to effective assistance of counsel, her right to a fair trial and 

her right to a presumption of innocence have all been infringed by the juvenile 

transfer procedures. 

¶98. Spina argues that the provision of the Youth Court Act which authorizes the 

Youth Court to order a psychological evaluation of a youth at any time prior to final 

disposition violates her right against self-incrimination under the Fifth Amendment 

to the United States Constitution and Article II, Section 25, of the Montana 

Constitution, as well as her right to effective assistance of counsel under the Sixth 

Amendment to the United States Constitution and Article II, Section 24, of the 

Montana Constitution, by requiring her to undergo an interrogation as to the facts of 

a criminal case prior to trial and without the presence of counsel. See § 41-5-523(4), 

MCA (1995). Spina contends that because an evaluation of this nature could not be 

required of an adult defendant in a criminal case, her guarantee of equal rights 

under Article II, Section 15, has been infringed. 

¶99. Spina's contention regarding the constitutional infirmity of § 41-5-523(4), MCA 

(1995), is wholly without merit, because the statute expressly authorizes the Youth 

Court to order such an evaluation only "if the youth waives the youth's constitutional 

rights in the manner provided for in 41-5-303." Section 41-5-303, MCA (1995), reads 

in pertinent part: 

(a) The youth must be advised of his right against self-incrimination and his right to 

counsel. 

(b) The youth may waive these rights under the following situations: 

. . . 

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(ii) when the youth is under the age of 16 years and the youth and a parent or guardian 

agree, they may make an effective waiver; and 

(iii) when the youth is under the age of 16 years and the youth and his parent or guardian 

do not agree, the youth may make an effective waiver only with advice of counsel. 

¶100. Spina's argument regarding the Youth Court's order that she undergo a 

psychological evaluation pursuant to § 41-5-523(4), MCA (1995), does not address 

whether a waiver of her rights was obtained prior to the examination, and the State's 

brief is likewise silent on this issue. Neither does the record on appeal provide any 

information regarding whether such a waiver was obtained. Because this issue was 

not raised before the District Court nor properly placed before us on appeal, we 

decline to address sua sponte whether the requirements of the transfer statute were 

properly followed in this case. See State v. Black (1995), 270 Mont. 329, 333, 891 P.2d 

1162, 1164; City of Kalispell v. Flathead County (1993), 260 Mont. 258, 267, 859 P.2d 458, 461 

(Trieweiler, J., dissenting). 

¶101. Spina also argues that her right to a fair trial under the Sixth Amendment to 

the United States Constitution and Article II, Section 24, of the Montana 

Constitution was compromised during the transfer process because of the highly 

public nature of the results of the transfer proceedings. More particularly, Spina 

contends that both the Youth Court and the mental health professionals who testified 

at the transfer hearing made conclusory statements regarding her guilt which were 

subsequently published in the media and "in all probability, had a significantly 

negative impact on her ability to get a fair and impartial jury in Cascade County." 

Spina contends that such a result could not have occurred in the case of an adult 

because only juveniles may be made subject to a transfer proceeding prior to 

arraignment.

¶102. We reject Spina's argument that the transfer statute denied her a fair trial in 

this instance. A defendant's right to a fair trial is jeopardized when the publicity 

surrounding the case is inflammatory. State v. Nichols (1987), 225 Mont. 438, 444, 

734 P.2d 170, 173. Publicity is not inflammatory merely because it is extensive; it 

must "show editorializing on the part of the media or any calculated attempt to 

prejudice public opinion . . . or to destroy the fairness of the pool from which his 

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prospective jurors would be drawn." State v. Armstrong (1980), 189 Mont. 407, 423, 

616 P.2d 341, 350. Media coverage is not inflammatory where it is factually accurate 

and contains the essential facts of the crime which will ultimately be presented to the 

jury anyway. Nichols, 225 Mont. at 445, 734 P.2d at 174.

¶103. Moreover, the law affords a defendant a number of mechanisms to protect 

against the effects of prejudicial publicity. Voir dire may be used to determine which 

potential jurors have been so affected by pretrial publicity they would be unable to 

render a fair verdict. Nichols, 225 Mont. at 444, 734 P.2d at 174. In some instances, 

the defendant may even request to have voir dire closed. See Nichols, 225 Mont. at 

444-45, 734 P.2d at 174. The effects of potential prejudice may also be averted 

through the use of a proper instruction to the members of the jury. See State v. 

Sullivan (1994), 266 Mont. 313, 321, 880 P.2d 829, 834-35. 

¶104. The only support Spina cites for her contention that her right to a fair trial was 

undermined by the publicity generated by the transfer hearing is her bald assertion 

that the jury pool in Cascade County was "probably" tainted. Spina does not cite 

any portion of the record which demonstrates that the transfer hearing generated 

inflammatory media coverage of her case. Nor does she cite to any portion of the 

record to demonstrate that the procedural mechanisms available for minimizing the 

effect of such prejudice were utilized by her at trial. For these reasons, we hold that 

Spina was not denied her right to a fair trial by an impartial jury as a result of her 

transfer by the Youth Court. 

¶105. Finally, Spina contends that the transfer hearing violated her constitutional 

right to be presumed innocent until proven guilty because "she was, in effect, 

publicly branded as guilty by a psychiatrist and a respected judge." We find this 

argument also to be without merit. 

¶106. The purpose of the transfer hearing was not to determine whether Spina was 

innocent or guilty as charged, but only whether there was probable cause to believe 

that she had committed the offense. The record reflects that the testimony of the 

mental health professionals in this case and the conclusions of the Youth Court in its 

transfer order did not purport to address the ultimate question of Spina's guilt. Also, 

Spina cites no portion of the record supporting her assertion that the members of her 

jury panel were impacted in any way by the testimony presented at the transfer 

hearing or the conclusions set forth in the Youth Court's transfer order. 

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¶107. For the reasons set forth above, we conclude that the juvenile transfer 

procedures of the Montana Youth Court Act did not violate Spina's rights under 

Article II, Section 15, of the Montana Constitution. 

¶108. Affirmed. 

/S/ J. A. TURNAGE

We concur: 

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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