This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In the Matter of the Welfare of:

X.T.X., Child.


Filed December 29, 2006


Ross, Judge


Winona County District Court

File No. JV-05-0003


William J. Aase, Aase and Kirscher, PLLC, 180 East Fifth Street, Suite 255, St. Paul, MN 55101 (for appellant X.T.X.)


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


Charles MacLean, Winona County Attorney, Thomas E. Gort, Assistant County Attorney, 171 West Third Street, Winona, MN 55987 (for respondent)


Considered and decided by Worke, Presiding Judge; Ross, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


ROSS, Judge

This case concerns the procedural treatment of one of four people who allegedly took turns groping and having vaginal and oral nonconsensual sex with an unconscious teenage girl before they abandoned her to bleed extensively after one of them forced a partially crushed beer can into her vagina.  Appellant X.T.X. is one of the four.  He was 17 years old at the time, is charged with first-degree criminal sexual conduct and other offenses, and now appeals the district court’s order certifying the proceeding so that he stand trial as an adult.  He argues that his lack of any record of juvenile delinquency or programming history and the adequacy of both punishment and programming under extended juvenile jurisdiction support treating him within the juvenile system.  He also argues that the district court erroneously concluded that he failed to rebut the presumption of adult certification and that it improperly focused exclusively on the seriousness of the offense and the limited length of time he would be subject to extended juvenile jurisdiction.  Because the district court thoroughly and properly considered and applied the statutory factors for adult certification, we affirm.


In November 2004 four males—two adults and two juveniles—went to the apartment of two juvenile females ostensibly to socialize.  The two adults are suspected gang members.  The state’s petition, the probation officer’s certification study, and police reports provide the following account of the sexual assault of one of the girls.

The group, especially the girls, consumed a considerable amount of alcohol in the apartment.  One of the two girls passed out in a bedroom, and the other allegedly removed the clothes from her unconscious roommate and vaginally penetrated her with her fingers.  She then urged her male visitors to take turns sexually assaulting the victim.  One by one, the males entered the victim’s bedroom, found her mostly or completely naked, and performed sexual acts on her as she lay unconscious.  The first, a juvenile, allegedly vaginally penetrated her with his penis and ejaculated inside her.  He left her in the room for the next male, X.T.X.  Seventeen-year-old X.T.X. entered the bedroom.  He allegedly groped the victim’s bare breasts and vaginally penetrated her with his fingers before attempting for several minutes to copulate.  X.T.X. then dressed himself and left the victim for the next assailant.  X.T.X. claims that he then left the apartment.

One of the adult males, an 18-year-old, immediately followed X.T.X.’s alleged assault.  He went into the victim’s bedroom and put his fingers into her vagina and his penis into her mouth until he ejaculated.  The man then allegedly inserted a beer can into the yet unconscious victim’s vagina, partially crushing the can with the forced penetration and causing significant vaginal lacerations.  Either before or during this part of the assault, the victim began to hemorrhage considerably.  After this last assailant left the bedroom, the roommate crudely urged the fourth male, who was 25 years old, to have sex with the unconscious girl.  He allegedly declined.

The victim’s roommate decided that because of the victim’s profuse vaginal bleeding, she should usher the males out of the apartment and clean up.  The men left the apartment, but no one called for emergency assistance.  The roommate cleaned up some of the blood and began to cook food on her stovetop.  She either fell asleep or passed out, which, fortuitously, allowed a wooden spoon to catch fire without her notice and motivated an alarmed apartment manager to enter when he noticed smoke escaping into the public hallway.  He found and pulled the two women from the apartment and called for medical and police assistance.

Police arrived and discovered evidence of the assault throughout the apartment.  They found a substantial quantity of blood pooled in the hallway where the manager had pulled the victim.  They found that a large quantity of blood had soaked through two comforters to cover a large section of the carpet in the bedroom.  They found the bloody, partially crushed beer can with gripping indentations on the bedroom floor.  They found small pieces of what appeared to be human flesh on the bathroom wall and tub, along with blood splatters on the walls and ceiling.  And they found blood-soaked towels on the bedroom and bathroom floors.

Emergency services personnel took the victim to the hospital, where she was airlifted from Winona to the Mayo Clinic for emergency treatment for her significant vaginal injuries and blood loss.  A victim impact statement speaks of her substantial physical and psychological damage.

The state filed a delinquency petition against X.T.X. alleging that he committed first-, second-, third- and fourth-degree criminal sexual conduct causing personal injury to a physically helpless person, aided and abetted first- and third-degree criminal sexual conduct against a physically helpless person, furnished alcohol to a minor, and consumed alcohol as a minor.  The state also moved the district court to certify the proceeding to prosecute X.T.X. as an adult.

The probation officer’s study recommended adult certification based primarily on the seriousness of the offense and the impact on the victim.  A corrections agent testified that X.T.X. presented a high public safety risk.  She relied on X.T.X.’s failure to report the crime, his leaving the apartment, and the level of violence involved.  A psychological and psychosexual evaluation of X.T.X. concluded that X.T.X. does not suffer from mental illness or disorder, does not exhibit a high risk for substance abuse, does not present a high risk of danger to public safety, and has a low risk of engaging in future sexual misconduct.  Still, the report recommended adult certification because of the limited period of time available for treatment and programming if X.T.X. was placed under extended juvenile jurisdiction (EJJ), which would terminate when X.T.X. reaches age 21.

The district court granted the state’s motion to certify the proceeding so that X.T.X. would be tried as an adult.  The court addressed each statutory factor and concluded that X.T.X. failed to rebut the presumptive certification by clear and convincing evidence that retaining the matter in juvenile court would serve public safety.  The court also concluded that although the consequences under EJJ are significant and the potential benefit to X.T.X. is substantial, there would not be sufficient time to monitor X.T.X.’s behavior and progress adequately under EJJ to ensure public safety, and the benefits of EJJ are outweighed by the benefits of certification.  This appeal follows.


X.T.X. challenges the district court’s decision to certify the proceeding to treat him as an adult.  District courts are given considerable latitude in determining whether certification for adult prosecution is appropriate, and this court will not reverse a determination to certify unless the district court’s findings are clearly erroneous so as to constitute an abuse of that discretion.  In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  On an appeal from a certification order, we presume that the factual allegations in the delinquency petition and the charges against the juvenile are true.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).

Without dispute, the statutory criteria for presumptive certification have been met.  See Minn. Stat. § 260B.125, subd. 3 (2004) (presuming adult certification if juvenile is 17 years old while allegedly committing offense that would result in presumptive commitment to prison).  And because the district court found probable cause to support the charges, the burden shifted to X.T.X. to rebut this presumption with clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.  Id.  If a juvenile fails to rebut the presumption by clear and convincing evidence, certification is mandatory.  Id.

X.T.X. argues that he rebutted the presumptive certification by showing that he is not a risk to public safety.  Specifically, he claims that the district court erred by finding that there was insufficient time under EJJ to monitor his behavior and to ensure public safety.  He also challenges the district court’s finding that the benefit to the community from certification outweighed the benefit to him from EJJ.

The district court must weigh six factors to determine whether public safety is served by certification:  (1) the seriousness of the alleged offense in terms of community protection, including aggravating factors, such as the impact on the victim; (2) the child’s culpability, including the involvement in the planning and carrying out of the offense; (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.  Id., subd. 4 (2004).  The statute mandates that greater weight be given to the seriousness of the offense and to the juvenile’s prior record than to the other factors.  Id.  The certification statutes emphasize public safety rather than treatment options.  State v. Mitchell, 577 N.W.2d 481, 489 (Minn. 1998).  We find that the district court properly addressed all six statutory factors without giving undue focus on any one in its certification order.  And we hold that the court’s finding that X.T.X. failed to rebut the presumptive certification by clear and convincing evidence is not clearly erroneous.

1.         Seriousness of the Offenses

X.T.X. does not dispute that the offense was serious, and he argues instead that the district court failed to properly analyze seriousness in relation to community protection.  In In re Welfare of H.S.H., 609 N.W.2d 259, 262 (Minn. App. 2000), this court reversed a certification order because the district court failed to explain how the seriousness of a three-day check-forgery spree supported certification in relation to community protection.  There, we noted that because certification cases generally involve violent crimes against persons, the risk to public safety is often clear.  Id.  X.T.X. claims that his behavior was an isolated incident and, because he is at a low risk to sexually reoffend, he is not a risk to public safety.  But although the psychologist testified that he did not believe that X.T.X. needs sex-offender treatment, both certification studies noted that the seriousness of the felonies weighs heavily in favor of certification.  The corrections agent testified that X.T.X. was more concerned about the charges than about the victim.  The certification study noted the substantial psychological and physical impact on the young victim.  As indicated, victim impact is an aggravating circumstance that bears on seriousness.  And the impact on the victim is not the only aggravating circumstance here.  X.T.X. allegedly committed the assault in line with three people who actively participated, and the victim was particularly vulnerable because she was incapacitated.  See Minn. Sent. Guidelines II.D.2.b(1), (10) (identifying reduced mental capacity and group criminal activity as aggravating factors for sentencing purposes).  The district court noted that X.T.X. acted in concert with others in sexually assaulting the victim and did nothing to help her or limit the danger despite knowing that others had engaged in and would continue the assault.  These factors bear strongly on community safety.  X.T.X. has not demonstrated that this factor, which must be assigned greater weight, argues against certification.  The district court did not abuse its broad discretion in considering this factor in favor of certification.

2.         Juvenile’s Culpability

The district court’s determination concerning the second factor, personal culpability, also suggests public safety concerns.  The district court found that X.T.X. knowingly and voluntarily participated in the sexual assault and is fully culpable.  X.T.X. does not dispute this, but he notes that the record suggests that he left before the victim was seriously injured with the beer can.  This assertion ignores that he was the third in a series of four offenders in line to sexually assault the unconscious juvenile victim.  X.T.X. also admitted pouring brandy for her, which she consumed until she lost consciousness, facilitating the assault.  The record amply supports that X.T.X. is fully culpable as an active participant in carrying out the abuse in concert with the others, and this factor favors certification.

3.         Juvenile’s Prior Record of Delinquency

X.T.X. points out that he has no prior record.  He argues that the district court abused its discretion by not giving this factor greater weight as required by the statute.  The state concedes that this factor weighs against certification but argues that it does not alone require retention as a juvenile proceeding.

The district court noted that X.T.X. has no juvenile record and that the certification study indicated that he had no behavioral problems at home, school, or in the community.  Although the court did not expressly acknowledge this factor’s greater weight, it also did not indicate that it gave greater weight to the seriousness of the offense.  Additionally, balancing the public safety factors “is not a rigid, mathematical equation and juvenile courts should have the discretion to weigh the factors in the context they are presented.”  In re Welfare of D.M.D., 607 N.W.2d 432, 438 (Minn. 2000).  The supreme court further explained the district court’s broad discretion to weigh the factors:

Although three factors may favor designation and three not, that does not mean one of the factors cannot counsel so strongly for designation as to justify that conclusion.  Similarly, that two factors are indicated by the statute as carrying more weight does not mean that another factor cannot tip the balance in favor of or against designation when those two factors cancel each other out.

Id. at 438 n.2.  X.T.X. points to nothing in the record to convince us that the district court failed to give greater weight to X.T.X.’s lack of a juvenile record than to other factors.

4.         Juvenile’s Programming History

The district court considered the fourth factor and found that X.T.X. has no programming history because he has never been in therapeutic counseling or placement.  It also found that X.T.X. would likely be amenable and suitable to programming available in the juvenile system.  The state argues that this factor weighs against rebuttal of presumptive certification because the district court also noted that the amount of time available to deliver suitable programming is insufficient.  But the limited programming time under a juvenile proceeding is a finding applicable instead to the fifth factor.  When it is undisputed that the juvenile has not previously participated in any programming, this factor cannot weigh in favor of certification.  In re Welfare of D.T.H., 572 N.W.2d 742, 744 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  It is unclear from the record the extent to which the district court weighted this factor in favor of certification, but we agree with X.T.X. that this factor does not favor certification.

5.         Adequacy of Punishment or Programming in Juvenile System

X.T.X. challenges the district court’s finding regarding the adequacy of punishment or programming in the juvenile system.  The district court found that two long-term juvenile programs were available, one of which had specific programming for EJJ juveniles in a secure facility.  The psychologist testified that three years would be preferable and that two years was the minimum to ensure that the programming could adequately address X.T.X.’s behavior and ensure public safety.  At the time of the court’s order, X.T.X. was 18 years, 5 months old, so he could have remained in the juvenile system under EJJ for only 2 years and 7 months, within the minimum requirements suggested by the psychologist but not within the preferable range.  While it appears that the district court found the available programming adequate, the court also found that the amount of time available to deliver suitable programming to X.T.X. was insufficient.  The court’s finding is not clearly erroneous.  The district court was not required to rely on the psychologist’s opinion, and it could consider the time limitations for programming in the juvenile system.  See H.S.H., 609 N.W.2d at 263 (noting that juvenile’s strong need for treatment longer than that available under juvenile jurisdiction weighed in favor of certification); see also St. Louis County v. S.D.S., 610 N.W.2d 644, 650 (Minn. App. 2000) (finding that programming options in juvenile system were outweighed by seriousness of alleged offenses, which must be given greater weight and which, when considered in light of other factors, favored certification).

6.         Dispositional Options Available

The district court properly considered the final factor, the dispositional options available.  The two other options beside juvenile jurisdiction were EJJ and adult certification.  But in this case, as discussed, although the court found that the benefit to X.T.X. from EJJ is substantial, EJJ was not viable because there would be insufficient time to monitor X.T.X.’s behavior and progress to ensure public safety.  X.T.X. offers no persuasive basis for us to fault the district court’s consideration of this factor.

Based on our deference to the district court’s discretionary factual determinations and the unmet burden on X.T.X. to introduce clear and convincing evidence to rebut the presumption of adult certification, X.T.X. fails to convince us that the district court committed reversible error.  The district court considered the statutory factors and did not abuse its broad discretion by determining that X.T.X. should be tried as an adult.


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