This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-654

 

 

In the Matter of the Welfare of: J.S.P.

 

 

Filed December 4, 2001

Affirmed

Forsberg, Judge*

 

 

Washington County District Court

File No. 154780Y

 

 

Douglas W. Thomson, Suite W-1260, First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101; and

 

Lisa Lodin Peralta, 205 Commerce at the Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for appellant)

 

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

 

Doug Johnson, Washington County Attorney, Anthony J. Zdroik, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082  (for respondent)

 

 

Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge,  and Forsberg, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

FORSBERG, Judge

 

Appellant seeks review of the district court’s decision certifying him for prosecution as an adult.  Appellant claims that the certification order should be reversed because the district court abused its discretion when weighing the statutory factors.  Because the record does not demonstrate that the juvenile rebutted the presumption of certification by clear and convincing evidence, we affirm.

FACTS

 

On the night of December 1, 2000, just two months before his 18th birthday, appellant J.S.P. consumed six beers over the course of three and a half hours.  J.S.P. then drove a car on the highway and a rollover accident occurred causing the death of J.S.P.’s passenger.  J.S.P. was charged with four counts of criminal vehicular homicide in violation of Minn. Stat. § 609.21, subd. 1(1), (2)(i), (3), (4) (2000).  The district court found there was probable cause for the charges and on February 21, 2001, held a certification hearing.  The district court gave consideration to a chemical dependency evaluation, certification study, and psychological evaluation as well as testimony presented at the certification hearing.

The district court determined that J.S.P. did not rebut by clear and convincing evidence the presumption of adult certification.  This case was, therefore, certified for adult prosecution.  J.S.P. appeals.

D E C I S I O N

 

The juvenile court has considerable discretion in deciding whether to certify a minor for adult prosecution.  In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).  A district court’s decision to certify a juvenile as an adult will only be reversed if the findings are clearly erroneous, constituting an abuse of discretion.  In re Welfare of T.L.J., 495 N.W.2d 237, 240 (Minn. App. 1993).  For purposes of the certification hearing, charges against the juvenile are presumed to be true.  J.L.B.,435 N.W.2d at 598.

Under Minnesota law, it is presumed that a juvenile offense will be certified to adult court when (1) the child was 16 or 17 at the time of the offense; and (2) the offense would result in a presumptive prison sentence if committed by an adult.  Minn. Stat. § 260B.125, subd. 3 (2000).  Because certification is only presumptive, a child may rebut the presumption by providing clear and convincing evidence “that retaining the proceeding in the juvenile court serves public safety.”  Id.

When determining whether the juvenile has rebutted the presumption of certification, the court must consider:  (1) the seriousness of the alleged offense; (2) the child’s culpability; (3) the child’s prior record of delinquency; (4) the child’s programming history; (5) the adequacy of punishment or programming available in the juvenile justice system; and (6) the dispositional options available for the child.  Minn. Stat. § 260B.125, subd. 4 (2000).  In considering these factors, this court has explained:

These factors, which address the nature of the offense and the circumstances of the child, are intended to assess whether a juvenile presents a risk to public safety and thus aim to predict whether a juvenile is likely to offend in the future.  Although some of the factors examine the juvenile’s past behavior and programming failures, others must be read to allow consideration of the juvenile’s current conduct.  In the end, the factors must show that a risk to public safety exists because the juvenile’s behaviors are likely to continue.

In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000).  Greater weight must be awarded to the seriousness of the alleged offense and the child’s prior record of delinquency.  Minn. Stat. § 260B.125, subd. 4.  For at least four reasons, our review of the record leads to a conclusion that the district court did not abuse its discretion in finding that J.S.P. failed to rebut the presumption of certification by clear and convincing evidence. 

 

Seriousness of the Offense

 

First, J.S.P. acknowledges the crime is serious but argues the district court put too much weight on this factor.  When considering the seriousness of the offense, the court should consider the offense

in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim[.]

 

Minn. Stat. § 260B.125, subd. 4(1).  As is correctly indicated in the district court’s findings, criminal vehicular homicide is a level seven on a scale of one to ten, ten being the most severe.  Minn. Sent. Guidelines V.  J.S.P.’s driving while intoxicated could easily have taken the lives of others in the community.  The victim’s death had a substantial impact on her family.  The district court correctly gave great weight to this factor.  See Minn. Stat. 260B.125, subd. 4 (“the court shall give greater weight to the seriousness of the alleged offense”).

 

Culpability

 

Second, the district court correctly found J.S.P.’s culpability supports certification because J.S.P. chose to drive while intoxicated.  On appeal J.S.P. argues that he was at most grossly negligent.  However, the accident resulted from J.S.P.’s choices and behavior and, therefore, the district court correctly weighed J.S.P.’s culpability for adult certification.

 

Prior Delinquency Record

 

Third, although J.S.P. had not previously been adjudicated, the district court did not abuse its discretion by considering prior charges against J.S.P. for failure to yield to a motor vehicle, felony theft, and pending charges of underage drinking and driving and possession of a small amount of marijuana.  When assessing the risk to public safety, the court appropriately considered pending charges that illustrate a pattern in the defendant’s behavior.  See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).  The district court noted that the offenses occurred within 19 months’ time, that in three of the instances J.S.P. consumed alcohol before driving an automobile, twice causing personal injury, including the death of his passenger in this case.  Because the district court determined that J.S.P.’s conduct formed a pattern that endangered the public, it correctly weighed this factor in favor of adult certification.

 

Adequacy of Punishment or Programming & Dispositional Options

 

Fourth, although placement was available for J.S.P. in a juvenile correction facility that his probation officer and a psychologist recommended, the district court did not abuse its discretion by finding adult certification was the proper option in this instance.  See In re Welfare of S.J.G., 547 N.W.2d 456, 460 (Minn. App. 1996) (finding no abuse of discretion to certify for adult adjudication where juvenile was found to be a threat to public safety, even though two doctors recommended extended jurisdiction juvenile adjudication).

The evidence supports the district court’s findings that J.S.P. (1) has a chemical dependency problem but denies it, (2) exhibits dishonest and narcissistic personality traits that typically thwart treatment programs, and (3) demonstrates behavioral patterns that put public safety at risk, making J.S.P. unsuitable for treatment while remaining in the community.

Chemical Health Counselor Sheri Minske testified that the amount J.S.P. admitted to drinking is inconsistent with his ability to drive a car with .18 blood alcohol content.  Minske believed that because J.S.P. was able to operate a vehicle with that blood alcohol level, he had an increased tolerance for alcohol.  Minske recommended adult certification because she found J.S.P. is not “amenable to any kind of treatment services because he was not willing to take a look at any chemical use concerns or problems.”

Probation Officer Lori Timlin reported that J.S.P. denied a problem with chemicals.  Although he expressed a willingness to participate in counseling, J.S.P. was not agreeable to voluntary treatment.

Psychologist James Wojcik evaluated J.S.P. and testified that he believed J.S.P.’s drug use was more extensive than J.S.P. admitted.  Wojcik determined that J.S.P. was narcissistic and lied to minimize his public guilt.  Wojcik testified that J.S.P. had been reckless, impulsive, and drug seeking.  Wojcik concluded that J.S.P. had been actively involved with drugs for two to three years.  Because J.S.P. was in denial about his alcohol and drug use, Wojcik believed J.S.P. was prone to reckless behavior and posed a risk to public safety. 

In light of this evidence, the district court did not abuse its discretion when it determined that the appropriate dispositional option in this case was adult certification.

Finally, J.S.P. argues that the district court abused its discretion by not weighing J.S.P.’s minimal programming history in favor of an extended jurisdiction juvenile designation.  Because there are abundant factors to support certification, this factor alone would not change the outcome in this case.  See In re Welfare D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997) (stating that even where programming history did not support certification, certification was appropriate based on the other factors), review denied (Minn. Feb. 19, 1998).

For these reasons, we conclude the district court did not abuse its discretion in determining that J.S.P. failed to rebut the presumption of certification.

Affirmed.

 



                * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.