This opinion will be unpublished and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

A03-242

 

In the Matter of the Welfare of: J.R.T., Juvenile.

 

Filed March 30, 2004

Affirmed

Stoneburner, Judge

 

Cass County District Court

File No. J40250668

 

John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant J.R.T.)

 

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

 

Earl E. Maus, Cass County Attorney, Cass County Courthouse, Box 3000, Walker, MN 56484 (for respondent State)

 

            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

            Appellant J.R.T., who is charged with second-degree murder, challenges his certification as an adult, claiming the district court (1) violated his due-process right to a fair hearing by denying his motion for a certification study and his request for a continuance and (2) abused its discretion by certifying him as an adult.  Because the evidence in the record demonstrates that J.R.T. did not rebut the presumption of certification by clear and convincing evidence, we affirm.

FACTS

 

            J.R.T., who became 18 years old on February 6, 2004, was arrested after witnesses saw J.R.T. and three other juveniles chase a blind man down the street in Cass Lake, then push, punch, and kick the victim before beating him over the head to death with his own cane.  The victim, later identified as Darryl Louis Bisson, died from blunt force trauma to the head.  The assault occurred in November 2002.

            An adult and his three children witnessed the murder through a large picture window in a nearby restaurant.  The adult stated that he saw J.R.T. hitting the victim and that he heard the victim’s head crack.  The adult left the restaurant and yelled, “Hey,” which only caused J.R.T. to pause briefly, look at the witness, and turn back to the victim to deal two more, two-handed blows with the cane to the victim’s head.  A shoe imprint was found on the victim’s face matching the shoes worn by J.R.T. 

            J.R.T. was charged with two counts of second-degree murder under Minn. Stat. § 609.12(1) and (2) (2002), presumptive certification offenses.  The county moved for adult certification.  At the probable cause hearing, J.R.T. requested the court to order a certification study.  The state opposed the motions, arguing that the district court had sufficient information on J.R.T. through his existing juvenile court files, including psychological reports from previous placements.  The district court denied J.R.T.’s request for a certification study.  More than six weeks after J.R.T.’s request for a certification study was denied, and eight days before the certification hearing was scheduled to begin, J.R.T. moved for a continuance to obtain an expert witness.  The motion was based on the affidavit of J.R.T.’s psychologist stating that he could not have a report ready for filing until three weeks after the date of the scheduled hearing.  The district court denied the motion for a continuance, but agreed to keep the record open for 15 days after the hearing to allow J.R.T. to file any additional reports or supplement the record, and provided that additional testimony, if requested, would be presented 21 days after the date of the scheduled hearing.

            At the certification hearing, testimony established that J.R.T. first came in contact with Cass County Health, Human and Veterans Services in August 2000, when his family requested help with his behavioral problems.  J.R.T. was placed at Chisholm House for a 30-day evaluation after in-home services failed.  J.R.T. entered Woodland Hill’s long-term residential treatment in October 2000.  The day after discharge from that program, J.R.T. was placed in a secure unit at Mesabi Academy.  J.R.T. ran away during a home visit in December 2001.  When he was located at the end of January 2002, he was returned to Mesabi Academy.  He was discharged in August 2002 to foster care.  The murder of Bisson occurred while J.R.T. was on a Thanksgiving home visit.  J.R.T.’s juvenile record consists of an adjudication as a petty offender for obstructing legal process and an adjudication of delinquency for fifth-degree assault. 

            A Cass County Social Services case manager testified that although, at times, J.R.T. progressed and made improvements while at Mesabi Academy, during his treatment he assaulted staff members and peers, and threatened others with violence. 

            There was testimony about the limited amount of time available to treat J.R.T. in the juvenile system due to his age, and testimony about the limited amount of time most juvenile programs retain juveniles in their programs.  J.R.T. did not supplement the record.

            The district court certified J.R.T. as an adult, finding that J.R.T.’s record of placements within the juvenile system demonstrated that he is no longer amenable to treatment as a juvenile and that J.R.T. failed to show by clear and convincing evidence that public safety would be served by treating him as an extended jurisdiction juvenile.  J.R.T. challenges the certification and the court’s denial of his motion for a certification study, and the denial of his motion for a continuance, and alleges that the district court was biased.

D E C I S I O N

 

I.          Refusal to order certification study or grant continuance

            J.R.T. contends that the district court abused its discretion by not ordering a certification study.  The rules of juvenile procedure provide that “[t]he court . . . may order social, psychiatric, or psychological studies concerning the child who is the subject of the certification proceeding.”  Minn. R. Juv. P. 18.03, subd. 1 (emphasis added).  Therefore, the court’s decision to order a certification study is discretionary.  Here, the court chose not to order a certification study, explaining that a certification study would be unnecessary because of J.R.T.’s prior contact with the court over approximately six years.  We conclude that the district court did not abuse its discretion by denying J.R.T.’s motion for a certification study.

            J.R.T. also contends that the court abused its discretion by not granting a continuance to allow his expert to testify on his behalf.  See In re Welfare of J.S.J., 550 N.W.2d 290, 292 (Minn. App. 1996) (a district court’s ruling regarding a continuance will not be reversed absent a clear abuse of discretion).  J.R.T. argues that allowing the record to be held open for less time than his expert said he needed to file a report was an abuse of discretion.  But J.R.T. has not demonstrated that his expert could not have provided sufficient information to supplement the record in the time allowed.  Because the district court ordered the record held open for a reasonable time to allow J.R.T. to supplement the record, we conclude that the district court did not abuse its discretion in denying J.R.T.’s motion for a continuance. 

II.        Bias

            J.R.T. argues that the district court abused its discretion by failing to make an individualized certification determination evidenced by the district court’s reference in the certification order to another juvenile involved in the murder.  This argument is without merit.  The court’s comparison of J.R.T.’s delinquency record to that of another juvenile involved in the assault was but a small part of the court’s memorandum and therefore, harmless.  The court did not compare the other juvenile to J.R.T. in such a way as to demonstrate bias or impropriety.

III.       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. 

            In Minnesota, 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).  It is undisputed that J.R.T. meets the elements of a presumptive certification.  Because certification is only presumptive, a juvenile may rebut the presumption by providing clear and convincing evidence that retaining the proceeding in the juvenile system 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 juvenile’s culpability; (3) the juvenile’s prior record of delinquency; (4) the juvenile’s programming history; (5) the adequacy of punishment or programming available in the juvenile justice system; and (6) the dispositional options available for the juvenile.  Minn. Stat. § 260B.125, subd. 4 (2002).  Greater weight must be accorded to the seriousness of the alleged offense and the juvenile’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).  The district court found three aggravating factors:  (1) the victim was an older man who was vulnerable due to his blindness; (2) the offense was particularly cruel; and (3) the victim was attacked by three or more people.  It is undisputed that the victim was legally blind, making him particularly vulnerable to the attack.  The police reports, witness statements, and the statements taken from the other juveniles involved in the assault support the district court’s other findings.  The witnesses’ descriptions of the beating provide ample support for the finding that the offense was cruel and that the attack involved at least three people.

            J.R.T. does not dispute that the offense was serious, but he claims that the district court failed to consider that this crime was not random, which J.R.T. asserts bears on the seriousness of the offense in the context of public safety.  The only evidence in the record supporting J.R.T.’s claim is a statement by another involved juvenile that J.R.T. recognized the victim as someone who once brandished a gun at him.  However, two of the other juveniles involved admitted that the victim was never mistaken for someone else and that he did nothing to provoke the attack.  Therefore, the evidence indicates that the crime was random.  Even if J.R.T initially thought he had a previous encounter with the victim, his subsequent actions are no less serious or threatening to public safety.

            b.         Culpability

            In assessing a juvenile’s culpability, the court must consider the level of the juvenile’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).  The district court found that the level of J.R.T.’s culpability weighed in favor of certification because, as the harassment escalated, J.R.T. grabbed the victim’s cane and began beating him on the head, and continued to do so even after the other juveniles had fled and a witness yelled to him.  In addition, a shoe imprint was found on the victim’s face matching the shoes worn by J.R.T. 

            The court found that there were no mitigating factors weighing in J.R.T.’s favor.

J.R.T. argues that the district court’s finding that there were no mitigating factors was clearly erroneous because he lacked substantial capacity for judgment at the time of the offense due to his major depression and conduct disorders and fetal alcohol syndrome (FAS) or fetal alcohol effect (FAE).  See Minn. Sent. Guidelines II.D.2.a.(3) (offender’s mental impairment is a mitigating factor where it results in a lack of substantial capacity for judgment when the offense is committed).  But no evidence was introduced at the certification hearing showing how these conditions affected J.R.T.’s judgment on the day of the assault despite the fact that the district court left the record open for the introduction of supplemental evidence from J.R.T.’s expert. 

            J.R.T. also argues that he was mentally impaired on the day of the offense because he was drunk.  But under the sentencing guidelines, the voluntary use of an intoxicant, such as alcohol, does not constitute a mental impairment.  See id.  Therefore, the district court’s findings regarding the lack of mitigating factors were not clearly erroneous. 

            c.         Prior record of delinquency

            When examining the prior delinquency record, the inquiry is whether the behavior is engrained and appears to be escalating.  In re Welfare of H.S.H., 609 N.W.2d 259, 263 (Minn. App. 2000).  J.R.T. argues that his prior record of delinquency is too minor to support certification.  J.R.T. was adjudicated as a petty offender for obstructing legal process and as a delinquent for fifth-degree assault. 

            This court has affirmed referrals to adult prosecution in cases where the juvenile did not have a particularly 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).  In addition to his prior juvenile adjudications, while in placement, J.R.T. violated his probation on the fifth-degree assault charge twice.  Further, there were continued incidents of assaults against staff and peers and threats of violence while in placement.  Therefore, even though J.R.T. did not have a long history of delinquency, his prior crimes and the recent assaults, coupled with the seriousness of this alleged crime and his culpability, support the district court’s finding that public safety would not be served by retaining J.R.T. in the juvenile system. 

            d.         Programming history

            J.R.T. argues that the court’s description of J.R.T.’s programming history as “extensive and relatively unsuccessful” is clearly erroneous because he claims that he was “prematurely” released from Mesabi Academy.  According to the record, J.R.T. would, at times, meaningfully participate in the programs and treatments offered at Mesabi Academy and would make improvements.  J.R.T. concedes, however, that he was unable to sustain his improvements and, shortly after his release from Mesabi Academy, J.R.T. “began a substantial downward spiral.” 

            J.R.T. now argues that his downward spiral after being released from Mesabi Academy was the fault of the county because it decided to release him before he completed all four levels of the program.  J.R.T. had completed three of the four levels of the Mesabi program before he ran away from the program in December of 2001.  When he was returned to the academy, he had to start over at the first level.  Testimony at the certification hearing established that, although he had not yet re-completed level two at the time of his discharge, he was improving and those involved in his placement determined it would be in J.R.T.’s best interests to be returned to a community family placement.

            For the purpose of determining whether public safety is served by adult certification, the rejection of prior treatment efforts generally demonstrates a juvenile’s unwillingness to submit to programming in a meaningful way.  In re Welfare of U.S., 612 N.W.2d 192, 196 (Minn. App. 2000).  The record supports the district court’s conclusion that J.R.T. was unable to sustain any progress made while in placement once he was allowed the opportunity for more freedom, which makes him a risk to public safety.  We cannot conclude that the district court clearly erred in finding that this factor weighed in favor of certification.     

            e.         Adequacy of punishment/programming available and dispositional options

            Regarding the last two factors, the district court found that if it were not to certify J.R.T. as an adult and retain jurisdiction, “the Court’s dispositional options would be extremely limited.  Given [J.R.T.’s] overall history and the violence of the alleged crime, the juvenile placements would not serve the public safety . . . .” 

            J.R.T. argues that he, and the public safety, would be best served if he were treated as an extended jurisdiction juvenile (EJJ).  See Minn. Stat. § 260B.125, subd. 5 (2002).  Under EJJ, the juvenile court retains jurisdiction over certain offenders until they reach the age of 21.  Minn. Stat. § 260B.130 (2002).  Under EJJ, the juvenile court imposes a juvenile disposition and a stayed adult disposition, which is imposed if the juvenile fails to comply with the juvenile disposition or commits any new offenses.  Id.   

            The district court noted that EJJ jurisdiction would end when J.R.T. is 21 years old.  At the time of the certification hearing J.R.T. was 17 years old, so he would be in the juvenile system for less than 48 months.  The district court found that, given J.R.T.’s history and the facts of this case, this punishment would be inadequate compared to the 306 months presumptive sentence for second-degree murder.  And the district court found that 48 months would not allow for adequate programming in the juvenile system.  Insufficient time for rehabilitation under the juvenile system is an appropriate consideration when determining whether to certify a juvenile.  Welfare of U.S., 612 N.W.2d at 197.  The court’s finding that the programming available and dispositional options present in the juvenile system were inadequate is not clearly erroneous.  J.R.T. failed to rebut the presumption of certification by clear and convincing evidence.

            Affirmed.