This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994).

                          STATE OF MINNESOTA
                            IN COURT OF APPEALS

     In the Matter of the Welfare of: L.B.K., Child.

Filed May 14, 1996
Short, Judge

Dakota County District Court

File No. JX9556489

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101 (for Respondent State of Minnesota)

James C. Backstrom, Dakota County Attorney, Jean M. Mitchell, Assistant
County Attorney, Dakota County Judicial Center, 1560 West Highway 55,
Hastings, MN 55033 (for Respondent State of Minnesota)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special
Assistant Public Defender, 2829 University Avenue, SE, Suite 600,
Minneapolis, MN 55414-3230 (for Appellant L.B.K.)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and
Short, Judge.

                        Unpublished Opinion

SHORT, Judge (Hon. Patrice K. Sutherland, District Court Trial

Pursuant to Minn. Stat. § 260.125, subd. 2(6) (i), the trial court
certified L.B.K. for prosecution as an adult on charges of: (1) aiding and
abetting attempted first-degree felony murder; (2) aiding and abetting
attempted second-degree intentional murder; (3) aiding and abetting first-
degree aggravated robbery; (4) aiding and abetting first-degree assault;
and (5) aiding and abetting second-degree assault with a dangerous weapon.
On appeal, L.B.K. argues the trial court abused its discretion by
certifying him for adult prosecution because he rebutted the statutory
presumption of certification with clear and convincing evidence of his
amenability to treatment. We affirm.

We will not reverse the certification of a juvenile for adult prosecution
absent findings so clearly erroneous as to constitute an abuse of
discretion. In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App.
1989), review denied (Minn. Mar. 17, 1989); see also In re
Welfare of D.F.B., 433 N.W.2d 79, 82 (Minn. 1988) (employing an abuse
of discretion standard in a reference case).

Until last year, Minnesota's adult certification statutes required the
state to support a petition for reference to adult court by clear
and convincing evidence that either (1) the child was not suitable to
treatment or (2) juvenile court jurisdiction would not serve public safety.
See Minn. Stat. § 260.125, subds. 2(d) (2) (describing the
state's burden of proof), 3 (1992) (authorizing a prima facie case for
reference under certain circumstances); D.F.B., 433 N.W.2d at 81
(noting the state retained the ultimate burden of persuasion even in prima
facie cases). As part of an effort to facilitate the certification of
serious, older juvenile offenders, the 1994 legislative session enacted a
presumptive certification regime for juveniles who were more than 16 years
old when they are alleged to have committed either (1) an offense
presumptively requiring incarceration under the Minnesota Sentencing
Guidelines or (2) any felony involving the juvenile's use of a firearm.
Minn. Stat. § 260.125, subds. 2(6) (i), 2a (1994); see also
Barry C. Feld, Violent Youth and Public Policy: A Case Study of
Juvenile Justice Law Reform, 79 Minn. L. Rev. 965, 1011-12, 1024, 1029
(1995) (discussing (1) the need to punish serious, older juvenile
offenders, (2) the Minnesota Juvenile Justice Task Force's recommendation
of presumptive certification for such individuals, and (3) the anticipated
growth of certifications under the new statute). This legislative approach
shifts the burden of proof to the minor, who can avoid certification
only by presenting clear and convincing evidence that juvenile proceedings
would serve public safety. Minn. Stat. § 260.125, subds. 2(6) (i), 2a.
In addition, the new statutory definition of public safety grounds the
inquiry in objective historical criteria and diminishes the weight attached
to subjective treatment considerations. Feld, supra, at 1006-12,
1029-33 (cataloging the defects of a subjective approach and explaining the
new provision's objective focus). Thus, the issue of public safety turns on
        (1) the seriousness of the alleged offense * * *,
        including the existence of any aggravating factors
        recognized by the sentencing guidelines, the use of
        a firearm, and the impact on any victim;
        (2) the culpability of the child * * *, 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

(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 within the
juvenile justice system; and

(6) the dispositional options available for the child.

In considering these factors, the court shall give greater weight to the
seriousness of the alleged offense and the child's prior record of
delinquency than to the other factors listed in this subdivision.

Minn. Stat. § 260.125, subd. 2b (1994).

It is undisputed L.B.K.'s alleged behavior falls within the presumptive
certification regime. Viewed as a whole, the record establishes L.B.K.: (1)
allegedly participated in crimes resulting in severe injuries, which are
made more egregious by the active cooperation of three perpetrators(1)
        [Footnote] (1)Minn. Sent. Guidelines II.D.2.b.(8).

and L.B.K.'s entrustment of a sawed-off shotgun to the younger juveniles,
who were placed in great danger while L.B.K. observed from a point of
safety; (2) allegedly planned the crime and outfitted its participants,
thus incurring a high degree of culpability, which is not offset by any
offense-specific mitigating factors; (3) participated in a similar juvenile
offense less than two years before the current offense; and (4) may have
behaved as a model citizen at the St. Croix Camp following his prior
juvenile offense, but subsequently failed to attend the recommended
substance abuse program, which suggests his inability to comprehend the
need for treatment. See In re Welfare of S.W.N., 541 N.W.2d 14, 16
(Minn. App. 1995) (noting that, for purposes of certification, courts must
accept the accuracy of the charges against the juvenile), review denied
(Minn. Feb. 9, 1996). While it is true that L.B.K. would have access to
an appropriate juvenile treatment program, one expert said this was not
clearly the best option open to the court under the presumptive
certification regime. A second expert recommended treatment within the
context of extended juvenile jurisdiction, but acknowledged she did not
consider the presumption in favor of certification when formulating her
opinion. Under these circumstances, and taking into account the statute's
particular concern for the seriousness of the offense and the juvenile's
prior record, we cannot say the trial court abused its discretion in
finding L.B.K. did not prove by clear and convincing evidence that juvenile
proceedings would serve public safety. See Minn. Stat. 𨵜.125,
subd. 2b (attaching special weight to the seriousness of the offense and
the juvenile's prior history of delinquency).