This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-244

 

 

In the Matter of the Welfare of:

G.A.R.B., Juvenile.

 

Filed January 9, 2004

Affirmed

Toussaint, Chief Judge

 

Cass County District Court

File No. J2-02-50667

 

Melissa Victoria Sheridan, Assistant State Public Defender, 1380 Corporate Center, Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Earl Maus, Cass County Attorney, Jean Ann Hartley, Assistant Cass County Attorney, P.O. Box 3000, Walker, MN 56484 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

            Appellant G.A.R.B., who is charged with second-degree murder, challenges his presumptive certification as an adult, claiming the district court abused its discretion by (1) concluding that he failed to rebut the presumption of certification; and (2) refusing to order a certification study.  Because the evidence in the record does not demonstrate that G.A.R.B. provided clear and convincing evidence that retaining the proceeding in juvenile court serves public safety, we affirm. 

FACTS

           G.A.R.B. was arrested after the beating death of a legally blind man on the streets of Cass Lake on November 29, 2002.  According to witnesses, G.A.R.B. and three other juveniles chased the blind man down the street, then pushed, punched and kicked the victim before beating him over the head with his own cane.  The victim, later identified as Darryl Louis Bisson, died from “blunt force trauma to the head.”

           An adult and his three children witnessed the beating through a large picture window in a nearby restaurant.  The adult told police that G.A.R.B. pushed and grabbed the victim, but did not actually see G.A.R.B. hit the victim.  Two of the children, however, claimed they saw G.A.R.B. punch the victim before leaving the scene.  The third child claimed that G.A.R.B. acted more as a “lookout,” but did not see G.A.R.B. hit the victim.  All four claim another juvenile, J.R.T., was responsible for a majority of the beating, including the lethal blows to the victim’s head. 

On December 2, 2002, G.A.R.B. was charged with two counts of second-degree murder under Minn. Stat. § 609.19, subds. 1, 2 (2002), for his participation in the beating. The county also filed a motion seeking adult certification.  A probable cause hearing was held on December 10, and G.A.R.B. moved the district court for a certification study.  On December 13, the district court issued an order finding probable cause and denying the motion for a certification study.  A certification hearing was held on February 6, 2003.

At the certification hearing, a Cass County probation officer testified that G.A.R.B.’s record of delinquency consisted of criminal damage to property, obstruction of legal processes, and disorderly conduct.  A Cass County Social Services case manager testified that G.A.R.B. was previously placed at the Mesabi Academy after becoming involved in drug use and guns.  The case manager stated that although G.A.R.B. made “very, very good progress” at the academy, during his treatment he ran away, fought with the other boys, assaulted a staff member, and threatened to kill someone.

On March 6, 2003, the district court issued an order certifying G.A.R.B. as an adult.  The court found, inter alia, that G.A.R.B.’s record of placements in the juvenile court showed that he was no longer amenable to treatment as a juvenile, and that G.A.R.B. failed to show by clear and convincing evidence that public safety would be served by continued application of the laws relating to juvenile court.  G.A.R.B. now appeals his certification, as well as the court’s denial of his motion for a certification study.

D E C I S I O N

 

I.

Adult Certification

 

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 (2002).  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 (2002).  Greater weight must be awarded to the seriousness of the alleged offense and the child's prior record of delinquency.  Id.

a.         Seriousness of Alleged Offense

In assessing the seriousness of the offense, courts are to consider any aggravating factors, as provided in the Minnesota Sentencing Guidelines.  Minn. Stat § 260B.125, subd. 4(1) (2002).  The district court concluded that the seriousness of the offense weighs in favor of certification, finding three aggravating factors:  (1) the victim was older than the juveniles and due to his blindness, was quite vulnerable; (2) the offense was particularly cruel; and (3) the victim was attacked by three or more people.  Here, it is undisputed that the victim was legally blind, making the victim vulnerable in the attack.  Witness testimony indicated that the victim was chased, harassed, pushed, punched, and kicked before being repeatedly beat over the head with his own cane, which supports the finding that the crime was particularly cruel.  Finally, all four witnesses stated that three of the juveniles, including G.A.R.B., participated in the beating to some level; be it pushing, punching, or kicking the victim, or serving as a “lookout.”  Thus, the evidence in the record supports the court’s finding that due to the vulnerability of the victim, the cruelty of the crime, and the multiple actors, the seriousness of the crime weighs in favor of certification.

G.A.R.B. argues that the district court failed to consider that this crime was not random, a factor that G.A.R.B. claims suggests that he is not a danger to society.  The only evidence in the record supporting G.A.R.B.’s claim is a statement by A.C. that J.R.T. recognized the victim as someone who once brandished a gun at him.  However, G.A.R.B. and another alleged accomplice admitted that the victim was never mistaken for someone else, and that he did nothing to provoke the attack.  Thus, the evidence indicates the crime was random, further supporting the court’s finding that the crime was serious. 

b.         Culpability

In assessing the juvenile’s culpability, the district court must consider 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.  Minn. Stat § 260B.125, subd. 4(2) (2002).  Here, the district court found that G.A.R.B.’s culpability “may be within the realm of aiding and abetting,” but noted that pursuant to In re Welfare of K.C., juveniles can be certified for adult prosecution based on accomplice liability.  513 N.W.2d 18, 21 (Minn. App. 1994), review denied (Minn. May 17, 1994).  The court further added that there were no mitigating factors.

G.A.R.B. claims the district court erred in finding there were no mitigating factors.  G.A.R.B. argues that his severe lead poisoning, major clinical depression, and probable affliction with fetal alcohol syndrome (FAS) are mitigating factors.  He points to the sentencing guidelines, which provide that an offender’s mental impairment is a mitigating factor where it results in a lack of substantial capacity for judgment when the offense is committed.  Minn. Sent. Guidelines II.D.2.a.(3).  However, while the record shows that G.A.R.B. suffers from severe lead poisoning and depression, no evidence was introduced at the certification hearing showing how these conditions affected his judgment on the day of the assault.  Furthermore, while it has been suspected that G.A.R.B. may have been born with FAS, this diagnosis has never been established.  Thus, the district court’s decision not to consider these conditions as mitigating factors was not clearly erroneous.

G.A.R.B. also argues that the district court failed to consider that his role in the attack was both minor and passive.  He again relies on the sentencing guidelines, which provide that an offender’s minor or passive role is a mitigating factor.  Minn. Sent. Guidelines II.D.2.a.(2).  Here, all the witnesses agree that G.A.R.B. never beat the victim with the cane.  One witness stated that G.A.R.B. never touched the victim, but instead acted as the “lookout.”  This witness, however, missed some of the beating because he ran towards the back of the restaurant to lock the door.  Another witness stated that he observed G.A.R.B. push and grab the victim, and two witnesses stated that G.A.R.B. punched the victim in the stomach once.  Thus, though G.A.R.B. may argue his role is “minor and passive” because he did not inflict the lethal blows, his actions, if proven clearly contributed to and facilitated the deadly beating.  The district court did not err in finding that G.A.R.B.’s role was not minor and passive.

While G.A.R.B. did not inflict the lethal blows to the victim’s head, because he participated in the beating to some level or may have served as the “lookout,” we cannot conclude the court’s finding that the culpability factor favored certification was clearly erroneous. 

c.         Prior Record of Delinquency

G.A.R.B. next argues that because his criminal record was “minor,” his prior record of delinquency does not favor certification.  G.A.R.B.’s juvenile record of delinquency consisted of one count each of first and fourth-degree criminal damage to property.  He also received petty misdemeanor citations for criminal damage to property, obstruction of legal process, and disorderly conduct. 

This court has affirmed referrals to adult prosecution in cases where the juvenile did not have a serious record of juvenile delinquency.  See In re Welfare of J.A.R., 408 N.W.2d 692, 693 (Minn. App. 1987) (affirming referral for adult prosecution when alleged offense was committed by 14-year-old whose record consisted of adjudications of incorrigibility and lurking with intent to commit a crime), review denied (Minn. Aug. 26, 1987); In re Welfare of D.M., 373 N.W.2d 845, 847 (Minn. App. 1985) (affirming referral for adult prosecution when alleged offense was committed by 17-year-old whose record consisted of truancy).  Furthermore, while G.A.R.B. was never adjudicated delinquent of a “serious” crime, several months before the attack in question, G.A.R.B. assaulted a juvenile and a staff member at the Mesabi Academy. 

Even though G.A.R.B. did not have a serious record of delinquency, his prior crimes and recent assaults, as well as the seriousness of the crime and his culpability, collectively favor a finding that public safety would not be served by retaining G.A.R.B. in the juvenile justice system.

d.         Programming History

G.A.R.B. argues the district court’s finding that his programming history “does not present an overly optimistic picture for complete rehabilitation” is clearly erroneous.  The record shows G.A.R.B. has either successfully completed all programs he has participated in, or has been discharged early in order to reunify him with his caregivers.  G.A.R.B.’s discharge papers indicated that throughout his stay at the academy he became less physically and verbally aggressive in conflict situations, and instead, learned to exert more self-control.  The discharge papers also state that G.A.R.B. improved his peer and staff relations, and became a peer leader. 

But the record also shows that G.A.R.B. escaped from the academy, and upon his return, assaulted another juvenile and a staff member.  When placed in a secured area after the assaults, he punched a hole in the wall and made threats.  In addition, the discharge papers showed concerns that G.A.R.B.’s aftercare plan did not include a program to address his chemical dependency.  It also indicated that G.A.R.B. continues to have problems with authority, and that during his last month at the academy, G.A.R.B. once again began to have difficulties with his peer relations.  Finally, after G.A.R.B. was released from the academy, he continued to display behavioral problems such as drinking and violating curfew.  In light of these facts, we cannot conclude that the district court erred in finding G.A.R.B.’s programming history “does not present an overly optimistic picture for complete rehabilitation.”

e.      Adequacy of Punishment/Programming Available and Dispositional Options

 

            With regard to the last two factors, the district court found that if it “were not to certify and retain extended juvenile jurisdiction, the court’s dispositional options would be extremely limited.  Given the overall history of the juvenile, the juvenile placements would not serve the public safety.”  G.A.R.B. claims that this finding is clearly erroneous.

            The district court found that it could only retain juvenile jurisdiction over G.A.R.B. at either the Mesabi Academy or the Minnesota Correctional Facility in Red Wing (the only two institutions that would take a juvenile convicted of second-degree murder) until he turns 21.  Because at the time of the hearing G.A.R.B. was only two months shy of his 17th birthday, he would be in the juvenile system for only 50 months.  Given the circumstances of the case and G.A.R.B.’s overall history, the court found that this sentence was inadequate when compared to 299 months, the minimum sentence he would receive, without a downward departure, for second-degree murder.  Insufficient time for rehabilitation under the juvenile system is an appropriate consideration when determining whether to certify a juvenile.  In re Welfare of U.S., 612 N.W.2d 192, 197 (Minn. App. 2000).  Thus, the court’s finding that the programming available and dispositional options in the juvenile system were inadequate was not clearly erroneous. 

            While G.A.R.B.’s prior record of delinquency and programming history did not strongly favor certification, in light of the seriousness of the crime and G.A.R.B.’s culpability, all the factors collectively weigh in favor of a finding that public safety will not be served by retaining G.A.R.B. in the juvenile system.  Thus, the district court correctly concluded that G.A.R.B. failed to rebut the presumption of certification by clear and convincing evidence.

II.

Certification Study

Finally, G.A.R.B. contends that the district court abused its discretion by not ordering a certification study.  The district court’s decision whether to order a certification study is discretionary.  See Minn. R. Juv. P. 18.03, subd. 1 (providing that “[t]he court . . . may order social, psychiatric, or psychological studies concerning the child who is the subject of the certification proceeding”) (emphasis added).  Here, the court chose not to order a certification study, explaining that because G.A.R.B. had been in the court system in the past, it was aware of his history.  We conclude that, considering the district court’s familiarity with G.A.R.B.’s record, it did not abuse its discretion in not ordering a certification study. 

            Affirmed.