This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-352

 

 

In the Matter of the Welfare of:

E. E. D., Child.

 

Filed October 10, 2000

Affirmed

Shumaker, Judge

 

Polk County District Court

File No. JX9950590

 

 

Charlann Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Wayne H. Swanson, Polk County Attorney, Sarah S. Barron, Assistant County Attorney, Crookston Professional Center, Suite 101, 223 East 7th Street, Crookston, MN 56716-1498 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

 

SHUMAKER, Judge

            Appellant E.E.D. appeals the juvenile court’s order certifying him to stand trial as an adult on charges of first-degree murder and crimes committed for the benefit of a gang.  We affirm.

FACTS

            Fifteen-year-old appellant E.E.D. and Cornelius Rodgers, both gang members, argued with each other.  Later, E.E.D. and another gang member ordered two new members to “hit”[1] Rodgers as part of their initiation into the gang.  E.E.D. and the other member were to witness the hit and to participate if necessary.

            After the hit was called off, E.E.D. and his companion developed another plan.  They would lure Rodgers to a bar and then kill him.  Rodgers came to the bar and E.E.D. and the other gang member drove him to a rural area in Polk County.  There, the companion pushed Rodgers to the ground and E.E.D. beat him to death with a car jack.  E.E.D. then rolled Rodgers into a ditch where authorities found his decomposing body several days later.

            The grand jury indicted E.E.D. on two counts of first-degree murder and two counts of first-degree murder for the benefit of a gang.  The state moved to certify E.E.D. to be tried as an adult.

            A probation officer who prepared a certification study testified that the crime was especially serious and included the aggravating factors of premeditation and particular cruelty to the victim.  He noted that E.E.D. did the actual killing and then took Rodgers’ identification to prove he did the “hit.”

            E.E.D.’s juvenile history showed a police report alleging a curfew violation, an undocumented report by his mother that E.E.D. had been charged four times as a runaway, and a one-week placement in a mental institution for an attempted suicide.

            The probation officer testified that therapeutic modalities and lengthy placements are limited in the juvenile system, but unlimited in the adult system.  Only two facilities could accept E.E.D. under extended juvenile jurisdiction and could hold him only until age 19 unless they received a waiver allowing retention until E.E.D. reached age 21.  The probation officer made no recommendation regarding certification.

            A dispositional advisor for a district public defender’s office testified that, although E.E.D.’s crime was serious, there remained adequate time for him to be treated successfully under extended juvenile jurisdiction.  The advisor gave his opinion that either facility that accepted E.E.D. would hold him until age 21, and that both had programs geared toward kids in gangs.  Both facilities were willing to accept E.E.D.

            The advisor testified that E.E.D.’s psychological examination presented a profile typical of those in the gang treatment programs and that there are no guarantees that adult treatment services will be available to E.E.D.  He recommended that E.E.D. be retained in the juvenile system.

            A court-appointed psychologist, Dr. Steven Olson, reported that E.E.D. admitted stealing, lying, destroying property, arson, and cruelty to animals.  Dr. Olson found that E.E.D. had been sexually abused as a child and that he had a moderate conduct disorder.  Dr. Olson described E.E.D. as a mature, street-smart child of average intelligence who needs individual therapy, contact with healthy male role models, and a nurturing, structured environment.  He did not make a recommendation as to certification.

            After hearing all the evidence, the juvenile court ordered E.E.D.’s certification to be tried as an adult.  E.E.D. appeals that decision.

D E C I S I O N

            Juvenile courts are given considerable latitude in determining if certification for adult prosecution is appropriate.  In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn.  Mar. 17, 1989).  Such a determination will not be reversed unless the court’s findings are so clearly erroneous as to constitute an abuse of discretion.  In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). 

            Because E.E.D. was 15 years old at the time of the offense, there is no presumption of certification.  See Minn. Stat. § 260.125, subd. 2a (1998).  The prosecutor has the burden of demonstrating by clear and convincing evidence that retaining E.E.D. in the juvenile court will not serve public safety.  See Minn. Stat. § 260.125, subd. 2(6)(ii) (1998); Minn. R. Juv. P. 18.04, subd. 4(E) and 18.05, subd. 2.  In determining whether public safety is best served by certifying, the juvenile court must be guided by six factors:

(1)              the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, * * * and the impact on any victim;

(2)              the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;

(3)              the child’s prior record of delinquency;

(4)              the child’s programming history, including the child’s past willingness to participate meaningfully in available programming;

(5)              the adequacy of the punishment or programming available in the juvenile justice system; and

(6)              the dispositional options available for the child.

Minn. Stat. § 260.125, subd. 2b (1998); Minn. R. Juv. P. 18.05, subd. 3.  Courts are to give greater weight to the seriousness of the offense and the child’s prior record of delinquency than to the other factors listed.  Id.  For purposes of certification, the juvenile is presumed guilty of the alleged offenses.  In re Welfare of K.M., 544 N.W.2d 781, 784 (Minn. App. 1996).

            E.E.D. argues that the state did not present clear and convincing evidence that he could not be successfully treated under Extended Juvenile Jurisdiction (EJJ) status or that EJJ would not serve public safety.

Seriousness of the offense

            The seriousness of the charges is not in dispute.  E.E.D. is charged with premeditated murder and felony murder.  In addition, the court found the existence of aggravating factors, including particular cruelty to the victim and that the murder was committed for the benefit of a gang.  Minn. Sent. Guidelines II.D.103 (2)(b)(2) and Minn. Stat. § 260.125, subd. 2b (1) (particular cruelty is a sentencing guidelines aggravating factor, which makes it a factor to consider in determining seriousness of offense for certification purposes); In re Welfare of J.S.J., 550 N.W.2d 290, 293 (Minn. App. 1996) (commission by multiple perpetrators, as an aggravating factor under the sentencing guidelines, is a proper factor in considering the seriousness of offense).

Culpability

E.E.D. argues that the court clearly erred in finding that this factor favors certification because the record is unclear as to how culpable he actually was.  He relies on the testimony of the public defender’s dispositional advisor, who stated that, in his experience, a person of E.E.D.’s age is likely to act only as a gopher for a gang.

The juvenile court found E.E.D. very culpable.  He was involved in planning the “hit” on the victim and was the person who actually killed the victim.  In addition, he had a chance to abandon the planned hit when intervention thwarted the initial attempt, but instead changed the plan and completed the “hit.”  E.E.D.’s accomplice stated that he pushed the victim to the ground and E.E.D. struck the victim three times on the head with the car jack, killing him.  There appear to be no mitigating factors.  The juvenile court did not err in concluding that E.E.D.’s culpability favors certification.

Delinquency record

            A history of misconduct can indicate that juvenile programming may not be in the interest of public safety.  In re Welfare of R.D.W., 407 N.W.2d 113, 116 (Minn. App. 1987), review denied (Minn.  July 15, 1987).  E.E.D. argues that the juvenile court failed to give proper weight to the fact that he has no prior record of delinquency.  See Minn. Stat. § 260.125, subd. 2b; Minn. R. Juv. P. 18.05, subd. 3 (courts are to give greater weight to seriousness of the offense and prior record of delinquency than to the other factors listed).

            The juvenile court found that E.E.D. had no prior record of delinquency, but concluded that the lack of a prior record of delinquency “is substantially outweighed by the other factors favoring certification.”  Furthermore, E.E.D. admitted committing numerous acts of arson for which he was never caught.  See In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996) (not error for juvenile court to consider K.M.’s prior gang-related activity consisting of unspecified illegal acts for which he had not been charged).

Although this factor weighs against certification, we conclude the juvenile court did not err in finding that it is outweighed by factors favoring certification.  See In re Welfare of D.M.D., Jr., 607 N.W.2d 432, 438 n. 2 (Minn. 2000) (“[T]hat two factors are indicated by the statute as carrying more weight does not mean that another cannot tip the balance in favor of or against [certification] when those two factors cancel each other out.”).

Programming history

            The fourth statutory factor examines the child’s programming history and his past willingness to participate meaningfully in required programs.  E.E.D.’s limited prior record produces a limited programming history.  E.E.D. argues that the court erred in concluding that his lack of programming history is a “neutral” factor, rather than finding that it weighs against certification. 

            The juvenile court found that E.E.D. had been placed in a medical center/mental institution in November 1998.  The court considered this placement when weighing whether or not this factor favored certification.  The juvenile court discerned that when viewing E.E.D.’s past programming history as a whole, the factor favored neither certification nor EJJ.

            Even if the juvenile court had found the minimal[2] programming history to favor certification, this is not a determinative factor in this case.  When all factors are weighed in the context they were presented to the juvenile court judge, there is clear and convincing evidence supporting certification.  The juvenile court did not abuse its discretion when it considered E.E.D.’s prior programming history and amenability to treatment.

Adequacy of punishment or programming available & Dispositional options

            There are three options available to E.E.D.: (1) remain in the juvenile system; (2) extended juvenile jurisdiction; or (3) certification.  The parties agree that straight juvenile jurisdiction would be inappropriate.  E.E.D. argues that adequate programming is available under EJJ to meet his treatment needs and that enough time remains before he reaches age 21 for him to be adequately treated in juvenile programming.

            The juvenile court found that juvenile programming would be inadequate because five years is not enough time to rehabilitate or punish E.E.D.  See Minn. Stat. § 260.125, subd. 2b(5) (court to look at adequacy of programming and punishment available in juvenile system).  Insufficient time for rehabilitation under the juvenile system is an appropriate consideration when deciding whether or not to certify.  In re Welfare of U.S., 612 N.W.2d 192, 197 (Minn. App. 2000).  The court considered all the testimony from the hearing.

            The probation officer found juvenile placement options limited because of the severity of the crime.  He did not make a specific recommendation on certification, but found that options of programming under EJJ limited because of the nature of the crime and that “[t]herapeutic possibilities are unlimited and are not so tightly restricted by time in the adult system.”  See In re Welfare of H.S.H., 609 N.W.2d 259, 263 (Minn. App. 2000) (“In some cases, a strong need for treatment that is not available or would require more time to complete than that remaining under juvenile jurisdiction may weigh in favor of certification.”). 

            The dispositional advisor testified, however, that E.E.D. presents a very typical profile of a child in the juvenile system and nothing indicates that he is a particular threat to the community.  He recommended that E.E.D. remain in the juvenile system because adequate placement facilities are available, E.E.D. has never been in programming, and he believes that E.E.D. can be rehabilitated in the juvenile system in the time remaining before he turns 21.

            The juvenile court ultimately found the testimony of the probation officer more credible than that of the dispositional advisor.  Where expert testimony conflicts, this court defers to the juvenile court’s credibility determination.  K.M., 544 N.W.2d at 785.  The court found that insufficient time for rehabilitation remains under the juvenile system and that the statutory factors weigh heavily in favor of certification.  Because the evidence supports the juvenile court’s findings, we find no abuse of discretion.

            Affirmed.

 

 



[1]  A “hit” meant a severe beating or death, whichever occurred first.

[2] This court has broadly defined “programming” to include mediation, out of home placements, and school interventions.  See In re St. Louis County v. S.D.S., 610 N.W.2d 644, 649 (Minn. App. 2000).