People ex rel. J.J.J.

OPINION OF THE COURT

(July 5, 2013)

J.J.J., a minor, appeals from a March 9, 2013 Order issued by the Family Division of Superior Court of the Virgin Islands, which directed that he be transferred to the Criminal Division to be tried as an adult. We conclude that the People presented sufficient evidence that JJJ. was transferable based on his age and the existence of probable cause that he committed the charged offenses. Consequently, for the reasons discussed below, we will affirm.

*321I. STATEMENT OF RELEVANT FACTS AND PROCEDURAL POSTURE2

William Hyde was brutally beaten in the evening hours of November 23, 2012. He lapsed into a coma. He was found in a shower stall at Magen’s Bay beach on St. Thomas on the morning of November 24, 2012. (J.A. 102.) He had no identification on his person and his grey Dodge truck was missing. (J.A. 103-04.) On December 17, 2012, he was taken off life support and died at a hospital in Florida. The cause of death was determined to be blunt force trauma to the head. (J.A. 134-35.)

The police located Hyde’s truck in the Anna’s Retreat area of St. Thomas and conducted surveillance in the vicinity of the vehicle. (J.A. 104.) On November 29, 2012, they saw a young male •— whom one of the detectives recognized and who was later identified as J.J.J.’s co-defendant, K.J.F. — approach the truck. (J.A. 104-05.) K.J.F. noticed the police and turned around. (J.A. 105.) The next day, he returned to the truck and removed a black box. (J.A. 106.) Later, he came back with the key for the truck and opened the vehicle; at that time, he was arrested. (J.A. 106.)

Once K.J.F. was arrested and advised of his rights, he waived his right to silence and, in the presence of his parents, he gave the police a statement. (J.A. 106.) K.J.F. stated that his classmate, D.B., gave him the keys to the truck. (J.A. 107.) Initially he told the police that he did not know whose truck it was, but he later stated that the truck belonged to Hyde, and that Hyde was the boss of co-defendant N.C. (J.A. 107.) When he was asked if he knew anything about Hyde being attacked, he stated that he did not, and that he and N.C. had been at a party at Sapphire Beach on November 23. (J.A. 109.) The police later confirmed that while N.C. and K.J.F. did attend a party at Sapphire, the party was on November 24, not November 23. (J.A. 109.)

Based on this information, N.C. and D.B. were arrested at their school on December 10, 2012. (J.A. 24, 111-12.) At the time he was arrested, D.B. had two cell phones in his possession, one of which belonged to Hyde. (J.A. 112,133.) With his mother and aunt present, N.C. gave the police a statement. (J.A. 112-13.) He told the police that his *322group of friends — himself, along with J.J.J., J.G., D.B. and KJ.F. — called Hyde and asked him to give them a ride to Magen’s Bay beach. (J.A. 113.) He said that he and Hyde were in the area of the stall, talking, while the other minors remained in the truck. (J.A. 138.) Hyde began to touch him inappropriately, according to N.C. (J.A. 113.) N.C. said he became upset and started beating Hyde. (J.A. 113-14.) He punched him with closed fists, and then K.J.F. brought a BB gun from the truck and started beating Hyde with it on his face and his body. (J.A. 114.) N.C. indicated that J.J.J. and J.G. were not involved in the attack. (J.A. 114.) K.J.F. and N.C. put Hyde in the shower stall and they left the beach in Hyde’s truck with J.G. and J.J.J. (J.A. 117.)

D.B. also waived his rights in the presence of his mother and provided the police with a statement. (J.A. 119.) He told the police that he was with his friends — N.C., J.J.J., J.G. and K.J.F. — near the basketball court in Anna’s Retreat in the evening of November 23, 2012. (J.A. 123.) J.J.J. had a BB gun with him and suggested that the group rob someone. (J.A. 124.) According to D.B., N.C. then suggested, “Let’s call my boss, let’s kill him because he’s old, gay and he [is] ready to die.” (J.A. 124.) The minors all agreed, and N.C. called his boss, Hyde. (J.A. 124.) Hyde drove to Anna’s Retreat in his truck. (J.A. 125.) The minors pointed the BB gun at Hyde and forced him out of the truck. (J.A. 125.) They held N.C. around the neck to make it seem that N.C. did not know what was going on and was also being held against his will. (J.A. 126.) They got into Hyde’s truck. J.G. drove, KJ.F. was in the passenger seat, and J.J.J. held the gun and sat in the middle of the back seat. (J.A. 126.) D.B. sat in the rear bed of the truck.3 (J.A. 126.) According to D.B., J.J.J. and J.G. pulled Hyde out of the vehicle, brought him to the shower stall and started beating and kicking him. (J.A. 127.) K.J.F. and N.C. then joined in the attack. (J.A. 127.) In addition to punching and kicking Hyde, D.B. said, they used the BB gun to beat him about his body.4 (J.A. 127.) D.B. told the police that he did not participate in the attack and remained in the bed of the truck until the others returned. (J.A. 127.) While they were beating *323Hyde, D.B. said he heard him cry out in pain, “why are you doing this here to me?” (J.A. 128.) After the minors left the beach, they went home, changed, and went out to a nightclub. (J.A. 129.)

On December 11, 2012, the day after the police took D.B. and N.C.’s statements, they arrested J.J.J. (J.A. 129-30.) He declined to waive his rights and did not provide a statement. (J.A. 129-30.) The following day, J.G. was arrested at his school and he also declined to speak to the police. (J.A. 132.)

The court held an advisement of rights hearing on December 11, 2012, for all of the minors except J.G., who had not yet been arrested. At the hearing, the parties were represented by counsel. J.J.J., in response to the court’s questions, stated his full name and his birth date, which established that he was 17 at the time of the offense.

The court clerk prepared a Memorandum Record of Proceeding, which summarized the advisement of rights proceeding. (J.A. 26.) It listed certain identifying information, including J.J.J.’s birthdate and age. (Id.) J.J.J. signed to acknowledge he had received a copy. J.J.J. also surrendered his birth certificate and passport card pursuant to the court’s orders. (J.A. 27-28.)

The People then charged J.J.J., and the other minors, with a number of offenses, the most serious of which was attempted first-degree murder. They also moved to transfer J.J.J. to the Criminal Division for trial as an adult. After Hyde died on December 17, 2012, the People filed an Amended Complaint on January 18,2013, charging J.J.J. with first-degree murder. The court scheduled a hearing on the Motion to Transfer on January 25, 2013. All of the minors appeared at the hearing with counsel. At the hearing, the case agent, Detective Steven Phillip, testified about the course of his investigation and relayed the statements provided to the police by the minors. He also testified that his investigation revealed the ages of the defendants. He said KJ.F. was 17, and that he thought D.B. was “around 15. He was 16.” (J.A. 135.) He also testified that J.G. was 14 at the time of the attack, N.C. was 17, and J.J.J. was 17. (J.A. 136.) When asked how he obtained this information, Detective Phillip testified that he had obtained it from the minors themselves and from their parents. (J.A. 136.)

Detective Phillip also testified that the police discovered a video on KJ.F.’s cell phone, which appeared to be taken from inside a vehicle with a grey interior on November 23, 2012, the night Hyde died. (J.A. *324143.) It showed K.J.F., N.C., and D.B. celebrating after the attack, and there was some sort of firearm visible in the video. (J.A. 141.)

The People called K.J.F.’s mother who confirmed that he was 17 at the time of the attack. (J.A. 162.) Likewise, D.B.’s mother testified that he was sixteen. (J.A. 163.) When the People called J.G.’s mother, she asserted her Fifth Amendment rights. (J.A. 164.) The People objected, arguing that her testimony would not risk incriminating her. (Id.) The court stated that, “we certainly can’t force [her] to testify,5 so we’ll let the record speak for itself. The [c]ourt will take judicial notice of her son’s age.” (J.A. 165.) The court indicated it would take judicial notice of J.G.’s age based on the record. After J.G.’s mother was excused, the court asked the People if there was anything they wanted to put on the record as to J.G.’s age, and the People responded, “In terms of documents?” (J.A. 166.) Counsel for the People then noted that the Memorandum Record of Proceeding from the December 13, 2012 advisement of rights indicated that J.G. was born on a date that would make him fourteen at the time of the attack. (J.A. 166.)

Likewise, J.J.J.’s mother invoked her Fifth Amendment right against self-incrimination and declined to testify as to her son’s birthdate. (J.A. 169-70.) Over J.J.J.’s objection, the court took judicial notice of his birthdate as it was listed on the Memorandum Record of Proceeding from the December 11, 2012 hearing, and also on the police’s “contact card” for J.J.J. (J.A. 171.) That birthdate indicates that J.J.J. was 17 at the time of the attack. (J.A. 171.)

*325N.C.’s mother — when called to provide age evidence for N.C. — also asserted her Fifth Amendment rights, and over counsel’s objection, the court took judicial notice of his birthday, as listed on the contact card and Memorandum Record of Proceeding. According to that birthdate, N.C. was 17 at the time of the attack. (J.A. 172-73.)

At the conclusion of the hearing, the court took the matter under advisement and permitted the parties to supplement their arguments in writing. The court reconvened the hearing on February 28, 2013. It stated on the record that it found probable cause and that all of the minors were fourteen or older, but younger than eighteen, at the time of the offense, taking judicial notice of the documents in the court’s file. It also ordered the minors to be committed to a Youth Rehabilitation Center on St. Croix. It memorialized these decisions in a Transfer Order issued on March 9, 2013, which it stayed pending J.J.J.’s appeal.

II. DISCUSSION

A. Jurisdiction and Standard of Review

“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.” V.I. Code Ann. tit. 4, § 32(a). An order transferring a juvenile from the Family Division to the Criminal Division of the Superior Court is a final, appealable order. 5 V.I.C. § 2508(d); In re S.T., 51 V.I. 420, 422 (V.I. 2009).

The Court reviews the Superior Court’s factual findings for clear error and exercises plenary review over the Superior Court’s application of the law to those facts. St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007); see also People v. John, 52 V.I. 247, 255 (V.I. 2009) (quoting United States v. Shields, 458 F.3d 269, 276 (3d Cir. 2006)), aff’d, 654 F.3d 412, 55 V.I. 1324 (3d Cir. 2011). Where an appellant fails to object to a Superior Court order or decision, the Court reviews for plain error. V.I.S.CT. R. 4(i). Phipps v. People, 54 V.I. 543, 546 (V.I. 2011). “ ‘Because the decision to transfer a juvenile for prosecution as an adult is committed to the sound discretion of the trial court, we review that decision only for an abuse of discretion.’ ” In re S.T., 51 V.I. at 422 (quoting United States v. A.R., 38 F.3d 699, 702 (3d Cir. 1994)).

*326B. Judicial Notice

1. Required Proof of Age

The Legislature has mandated that certain minors who commit serious, violent offenses such as first-degree murder must have their cases transferred from the Family Division to the Criminal Division to be tried as adults. Specifically, section 2508(b) of title 5 of the Virgin Islands Code provides in relevant part as follows:

(b) If a child or adult is charged with an offense which would be a felony if committed by an adult, and the child or adult was fourteen years of age or older at the time of the alleged offense, the Family Division of the Superior Court, after a determination of probable cause, shall transfer the person for proper criminal proceedings to a court of competent criminal jurisdiction when: ...

(4) the offense now charged is one of the following offenses, which would be a felony if committed by an adult: murder in the first degree or an attempt to do so ....

5 V.I.C. § 2508(b) (emphasis added).6

In its January 25 and February 28 hearings, the trial court received evidence as to the existence of probable cause that the minors committed the alleged crimes, and as to the age of the minors. As discussed below, the trial court did not err in finding probable cause that the crimes were committed and that they were committed by these minors. However, the court must determine whether there was sufficient evidence that the minors were age 14 or older but younger than 18 at the time of the offenses and whether the trial court committed reversible error by taking judicial notice of facts in the court record as to the minors’ birthdates.

As an initial matter, the trial court did not state, and the statute does not establish, the legal burden of proof as to the minors’ ages. If age was an *327element of the charged offense, and if the proceeding was a final proceeding to adjudicate a minor’s guilt, there is no question that the child’s age would have be proved by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364-68, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (deciding that, at the adjudicatory stage of a juvenile delinquency proceeding, the government must prove beyond a reasonable doubt every fact necessary to establish the charged offense).

Here, however, age is not an element of any of the crimes charged against J.J.J., and the proceedings were preliminary transfer hearings, rather than final proceedings to determine guilt. See United States v. Alvarez-Porras, 643 F.2d 54, 66-67 (2d Cir. 1981) (deciding that it is not unconstitutional to require a defendant to prove his age because it is not an element of the offense and merely determines the procedures that will be used to prosecute him). Consequently, the standard may be other than the beyond-a-reasonable-doubt standard. See State v. Read, 397 N.J. Super. 598, 938 A.2d 953, 959-60 (2008) (applying a transfer statute similar to section 2508(b) and stating that “the requirement of jury fact-finding based on proof beyond a reasonable doubt does not apply to a pretrial determination such as whether to waive a complaint against a juvenile to adult court”). New Jersey and Minnesota apply a preponderance standard to the determination of the minor’s age at a transfer hearing. In re R.L., No. A-1757-07T4, 2008 N.J. Super. Unpub. LEXIS 323, at *4 (N.J. Super. Ct. App. Div. Dec. 8, 2008) (unpublished); State v. Ali, 806 N.W.2d 45, 50-54 (Minn. 2011) (noting that defendants often have superior information about their age, and thus a preponderance standard is appropriate). Similarly, California requires that a defendant seeking certification to the juvenile division as a minor must show by a preponderance of the evidence that he is under the age of 18. People v. Nguyen, 222 Cal. App. 3d 1612, 272 Cal. Rptr. 523, 526 (1990); United States v. Garcia-Flores, 925 F.2d 1471, at *3 (unpublished). Under federal law, the government bears the initial burden of proving age, but must only make a prima facie showing, after which it is the defendant’s burden to disprove. United States v. Juvenile Male, 595 F.3d 885, 897 (9th Cir. 2010).

Some states have determined that age need not be proved- at all, unless the minor specifically challenges the authority of the court on the basis of his age. See Nguyen, 272 Cal. Rptr. at 526 (noting that if a defendant challenges the authority of the adult division to hear his case, he bears the *328burden of establishing his minority, since he is the party making the motion); In re Greene, 76 Ill.2d 204, 215, 390 N.E.2d 884, 28 Ill. Dec. 525 (1979) (stating that general denials to the authority of the court were insufficient and defendant must specifically contest age, since “age is not an element which the State must prove”); cf. In re T.T., No. 94829, 2010 Ohio 5148, at ¶ 8 (Ohio Ct. App. Oct. 21, 2010) (unpublished) (finding that state did not prove that it was more likely than not that the defendant was the requisite age to transfer where the only evidence as to the minor’s age was a police officer’s testimony, which the officer qualified by saying, “I’m not exactly positive [as to the birthdate]”); Matter of A.D.D., 974 S.W.2d 299, 302-04 (Tex. App. 1998) (concluding that the court did not need proof of minor’s age at adjudicatory hearing, and the court had jurisdiction over the minor if, at the time of the judgment, there was evidence in the record as to the minor’s age); cf. State v. Rojas, 85 Wash. App. 1030, at *2 (Wash. Ct. App. 1997) (unpublished) (stating that where the defendant had told a police officer he was an adult, and thus gave the government “a reasonable basis to believe he was an adult,” he then bore the burden of production to demonstrate that he was actually a juvenile and thus amenable to the juvenile court’s jurisdiction).

Considering this persuasive authority, we hold that once the People present prima facie evidence at a transfer hearing that a defendant was 14 years or older, but less than 18, at the time of the alleged offense, the burden of production then shifts to the minor to disprove the People’s evidence. Should the minor produce such evidence, the burden of persuasion will remain with the People to convince the court by a preponderance of the evidence that the defendant is the age the People allege. This approach preserves judicial and public resources because the case may proceed so long as the People present some credible evidence of the minor’s age; yet, if the defendant can show that the People’s evidence is incorrect and that he is not amenable to transfer, the court can decide whether a preponderance of the evidence shows that the People’s evidence as to the minor’s age is convincing. This approach avoids the delay of interlocutory appeals based on proof of age where the defendant has no evidence to show that he is not the age alleged. It balances the concern regarding transferring an ineligible minor to the Criminal Division with the fact that the minor is in the best position to produce evidence of his age. See Alvarez-Porras, 643 F.2d at 67 (referencing “the parties’ relative access to pedigree information”). If the Family Division *329makes a mistake as to the child’s age which results in an impermissible transfer, the Criminal Division is required to “forthwith transfer the case” to the Family Division, thus ensuring that the minor is protected in case he is unable to demonstrate his age until some point after the transfer hearing. 5 V.I.C. § 2507(a)(2).

2. Rule 201 of the Federal Rules of Evidence

Rule 201 of the Federal Rules of Evidence — which the Virgin Islands has adopted — permits courts to take judicial notice of certain facts. Judicial notice — an evidentiary mechanism by which the proponent is relieved of its duty to prove an adjudicatory fact through normal evidentiary means — is only appropriate when the fact “is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

We have ruled that a “trial court may take judicial notice of the existence of a document that has been filed with it, [but] it may not assume, through judicial notice, that the contents of those documents are true unless the other requirements for judicial notice are met . . . .” Farrell v. People, 54 V.I. 600, 616 & n. 13 (V.I. 2011) (citing cases). Here, the court took judicial notice of J.J.J.’s age based on the Memorandum Record of Proceeding, prepared by a court clerk, which indicated that J.J.J. had stated his age under oath at the advisement of rights hearing, and also based on the birth certificate which J.J.J. surrendered to the court after the advisement of rights hearing.

J.J.J. argues that the trial court violated Rule 201 when it took judicial notice of a disputed fact — his age — as reflected in the documents in the court file. We conclude that, even if the trial court erred by taking judicial notice of J.J.J.’s age,7 any error was harmless. As noted *330above, the People were only required to present prima facie evidence of a minor’s age in order to qualify the matter for transfer to the Criminal Division. Such prima facie proof would “establish a fact . . . unless contradictory evidence is produced.” BLACK’S LAW DICTIONARY 638-39 (9th ed. 2009).8 Here, the People presented the testimony of Detective Phillip — the case agent — who testified that J.J.J. was 17 at the time of the incident.9 J.J.J. did not present any evidence to contradict Detective Phillip’s testimony about his age, and in fact never even argued that he was anything other than 17 at the time of the attack. Consequently, presented with uncontested prima facie evidence, the court would have been required to accept Detective Phillip’s testimony as to J.J.J.’s age. See United States v. Hasan, 747 F. Supp. 2d 642, 673-74 (E.D. Va. 2010) (stating that where evidence showed defendant told juveniles he was an adult, government had presented prima facie evidence for prosecution as an adult); cf. Matter of Welfare of D.T.N., 508 N.W.2d 790, 794 (Minn. Ct. App. 1993) (only when a minor “rebut[s] the prima facie case by sufficient evidence” must the court weigh the evidence and consider the totality of the circumstances in deciding whether to try the child as an *331adult). Therefore, even if the court had never taken judicial notice of the minors’ age, the evidence presented at the hearing established J.J.J.’s amenability to transfer under the provisions of section 2508(b).

C. Probable Cause

The government has established probable cause pursuant to section 2508(b) when the court finds that the facts and circumstances would warrant a prudent person in believing that the crime has been committed and that the minor committed the charged crime. In re N.G., 119 F. Supp. 2d 525, 528 (D.V.I. App. Div. 2000). Here, the evidence supports the trial court’s finding that there was probable cause to believe that J.J.J., along with the other minors, committed the charged crimes.

The statements taken from the minors are not entirely consistent, but they generally indicate that the minors telephoned Hyde in order to get him to pick them up in Anna’s Retreat, supporting the trial court’s finding that J.J.J., along with the others, “planned to call Mr. Hyde.”10 (J.A. 9.) D.B. — a minor who had in his possession at the time of his arrest a cell phone belonging to Hyde — told the police that N.C. precipitated the phone call by suggesting to the other minors that they call Hyde and “kill him because he’s old, gay and he [is] ready to die.” (J.A. 124.) The minors then brought Hyde to the beach at gunpoint. (J.A. 125.) The evidence further supports the court’s conclusion that, once there, each minor “either beat [Hyde] or saw him beaten.” (J.A. 9.) While N.C. denied that J.J.J. was involved in the attack (J.A. 114), D.B. stated that J.J.J. held a BB gun on Hyde, pulled him out of his truck, brought him to the shower stall, the minors beat him with their fists and the gun, and kicked him about his body. (J.A. 127.) The court was entitled to give credit to D.B.’s statement over the statement made by N.C. Later, the minors — including J.J.J. — left Hyde to die and departed the beach in Hyde’s truck, with his cell phone in their possession. Hyde lapsed into a coma and eventually died of his injuries. The evidence also established that Hyde’s truck was worth more than $100. (J.A. 110.)

*332We conclude, therefore, that there was sufficient evidence for a reasonable person to believe that J.JJ. committed the offenses of murder in the first or second degree, assault in the third degree, possession of a dangerous weapon during the commission of those crimes of violence, grand larceny, possession of stolen property, false imprisonment and unauthorized use of a vehicle — either as a principal or as an aider and abettor — and was consequently amenable to transfer.

III. CONCLUSION

The trial court correctly found that there was probable cause that J.JJ. committed the charged crimes and, even if it erred by taking judicial notice of J.J.J.’s age, any such error was harmless, because the evidence presented by the People regarding his age was uncontested. For these reasons, we affirm the March 9, 2013 Transfer Order, and remand the case for further proceedings.