No. 81-524 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN THE MATTER OF 

N. C. F., a Youth. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, The Honorable 

Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Olsen, Christensen & Gannett; Robert J. Waller, 

Billings, Montana 

For Respondent : 

Harold Hanser, County Attorney, Billings, 

Montana 

Filed : 

Submitted on Brlefs: February 25, 1982 

Decided: April 8, 1982 

APR 8 - 198Z 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion 

of the Court. 

The State filed a motion on September 9, 1981, requesting the Youth Court to waive its jurisdiction over N.C.F., a 

youth, and to transfer jurisdiction to the District Court. 

Pursuant to section 41-5-206(1)(b), MCA, a hearing on the 

petition was held September 21 and 22, 1981, before the 

Youth Court Division of the Thirteenth Judicial District 

Court. That court issued an order on September 29, 1981, 

granting the State's petition. The youth now appeals that 

order. 

Michelle Ross was shot in the face with a 20 gauge 

sawed-off shotgun at approximately 8:00 P.M., September 8, 

1981. The shooting occurred in front of a structure in 

Billings, Montana, where N.C.F., Robert Peterson and Michelle's 

boyfriend, George Irish, resided. N.C.F., Robert, Todd 

Heiser and Michelle's sister, Niki Ross, were present at the 

time of the shooting. 

Todd testified at the hearing that upon Michelle and 

Niki's arrival, Robert proceeded to the road to talk to 

Michelle while N.C.F. entered the structure. N.C.F. returned 

outside immediately with a sawed-off shotgun and loaded the 

gun in front of Todd. N.C.F. then walked toward Michelle. 

Todd heard a gun shot and saw Michelle fall. Todd then fled 

the scene. 

Niki Ross corroborated Todd's story at the hearing. 

She indicated that while her sister was talking to Robert, 

N.C.F. approached them carrying a sawed-off shotgun, the gun 

was fired and Michelle fell to the ground. 

Robert Peterson reported to police essentially the 

same set of events on September 9, 1981. However, at the 
hearing, he testified to seeing N.C.F. stumble and start to 

fall to the ground immediately prior to the gun having been 

discharged. All three of these individuals also testified 

to having seen N.C.F. point a gun at themselves and others, 

occasionally dry-fire a gun while it was pointed at an 

individual and misuse other weapons. 

The 20 gauge sawed-off shotgun was found by a neighbor 

in the loft of her garage two days after the shooting. A 

print from N.C.F.'s left hand was found on the barrel of the 

gun. Both Robert and Niki reported that N.C.F. was holding 

the barrel of the shotgun in his left hand at the time of 

the incident. 

N.C.F. was arrested the night of the shooting and a 

petition was filed September 9, 1981, charging him with 

attempted deliberate homicide. Following Michelle's death, 

an amended petition was filed September 19, 1981, charging 

N.C.F. with deliberate homicide. The hearing on the State's 

petition for transfer took place on September 21 and 22, 

Section 41-5-206, MCA, contains the criteria to be used 

at Youth Court hearings to determine whether or not to 

transfer jurisdiction over a youth to the District Court. 

The issue before us is whether the Youth Court abused its 

discretion by failing to adequately consider whether or not 

the Youth Court's facilities, services and procedures would 

serve the needs of N.C.F. and the community. The relevant 

Youth Court Act section is: 

"41-5-206. Transfer to criminal court. (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 matter of 

prosecution to the district court if: 
"(d) the court finds upon the hearing of all 

relevant evidence that there are reasonable 

grounds to believe that: 

"(ii) the seriousness of the offense and the 

protection of the community require treatment 

of the youth beyond that afforded by juvenile 

facilities. 

" (2) In transferring the matter of prosecution to the district court, the court shall 

also consider the following factors: 

"(d) the prospects for adequate protection 

of the public and the likelihood of reasonable rehabilitation of the youth by the use 

of procedures, services and facilities currently available to the youth court." 

Part 2 of this section was changed effective October 1, 

1981, to state that the court may - consider the following 

factors, rather than that it shall consider those factors. 

However, the statute containing the word "shall" was in 

effect at the time of the instant transfer hearing. Therefore, 

that statute and this Court's interpretation of that statute 

in In re Stevenson (1975), 167 Mont. 220, 538 P.2d 5, are 

relevant. In Stevenson, we stated on pages 229 and 230: 

"Montana's Youth Court Act does not require 

that the youth court make a specific finding that the youth is not amenable to the 

rehabilitative programs currently existing 

under the system as a condition precedent to 

a valid waiver of jurisdiction. However, it 

does require the judge to carefully consider 

this factor along with all other factors 

set out by statute. 

"Evidence relevant to each factor should be 

preserved in the transcript in order to permit meaningful appellate review. 
"It is not necessary that all factors be resolved against the youth in order to justify 

the waiver . . . However, all factors set 

forth by statute must be carefully considered 

and a very deliberate evaluation of each individual case must be effectuated prior to 

the entry of a waiver order." 

A review of the transcript of the hearing indicates 

that both the statutory requirements as well as those enumerated 

by this Court in Stevenson were met by the Youth Court judge 

in the instant case. 

The testimony of Todd, Robert and Niki, together with 

the presence of N.C.F.'s handprint on the hidden sawed-off 

shotgun, is sufficient evidence to constitute reasonable 

grounds to believe N.C.F. committed the act alleged. That 

act is a very serious offense, the deliberate killing of a 

sixteen-year-old girl. There was also much testimony at the 

hearing regarding N.C.F.'s frequent misuse of various kinds 

of weapons, thus implying the danger he presents to the 

community. 

Testimony was given at the hearing by Ted Lechner, 

Director of Court Services, Thirteenth Judicial District and 

Elwin Ness, juvenile probation officer, regarding the facilities 

and services provided by the Youth Court. The Department of 

Institutions no longer places adjudicated youth at the 

Swan River Youth Camp. Essentially, the only facility 

available for N.C.F. is Pine Hills Boys' Home. However, 

once a youth turns eighteen, Pine Hills begins proceedings 

to dismiss the youth. N.C.F. turned eighteen on October 4, 

1981. Pine Hills is, for all practical purposes, unavailable 

to him. 

Other services provided by the Youth Court are group 

homes such as "The Ritz" in Great Falls, schooling, vocational 
training, counseling and psychiatric evaluations. Therefore, 

there are really no appropriate Youth Court facilities or 

services available for the proper treatment of N.C.F. 

Both Mr. Lechner and Mr. Ness recommended that jurisdiction 

by the Youth Court over N.C.F. be waived and transferred to 

the District Court. Their reasons for the recommendations 

were the inability of Pine Hills to meet the treatment needs 

of N.C.F., his size, his age, his independent lifestyle and 

his level of maturity. They also stated that it would be 

very difficult for Pine Hills to accommodate N.C.F. as 

their program is primarily for younger teenagers and it is 

very difficult to mix the two age groups in a detention 

facility. 

The testimony and evidence presented at the hearing 

indicate that N.C.F. requires treatment and the community 

requires protection from N.C.F. beyond that afforded by 

juvenile facilities. Therefore, the criteria of section 41- 

5-206 (1) (d) (ii) , MCA, were satisfied. 

Section 41-5-206(2)(d), MCA, requires the Youth Court 

judge to consider factors relating to the potential of the 

Youth Court facilities to reasonably rehabilitate N.C.F. 

She did so. She also determined that the youth would not be 

rehabilitated by the available Youth Court services and 

facilities. There is substantial credible evidence to 

support that determination. She adequately considered all 

factors required by section 41-5-206, MCA. Therefore, the 
We Concur: 

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