This opinion will be unpublished and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
C9-95-2656

In the Matter of the Welfare of:
T. V.

Filed July 9, 1996
Affirmed
Parker, Judge

Ramsey County Juvenile Court
File No. J795554801

William Gatton, Neighborhood Justice Center, 500 Laurel Avenue, St. Paul, MN 55102 (for appellant T.V.)

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant T.V., who was 15 years of age at the time of his arrest, was charged by delinquency petition with three counts of second-degree assault in violation of Minn. Stat. '' 609.22, subd. 1; 609.11; and 609.05 (1995). Pursuant to Minn. Stat. ' 260.125, subd. 2 (Supp. 1995), the state moved to certify him for prosecution as an adult. The motion was granted, and T.V. appeals. We affirm.

D E C I S I O N

A juvenile court has "considerable latitude" in deciding whether to certify a case 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). "Its decision will not be upset unless its findings are clearly erroneous so as to constitute an abuse of discretion." Id.

1. T.V. argues that the state has failed to prove by clear and convincing evidence that retaining his case in the juvenile system would not serve public safety. He contends that Minn. Stat. ' 260.125, subd. 2(6)(ii) (Supp. 1995), requires that the record support a finding of dangerousness to show that public safety would not be served by retaining him in the juvenile court system. T.V. argues that because he has no prior criminal history, no disciplinary incidents at school, no proven gang affiliation, and no assaultive incidents at home, there was insufficient evidence to support the trial court's findings. Because the matter in question is his only incident of misconduct, he contends, the trial court should have followed the recommendations of the parole officer and retained his case in juvenile court.

"[F]or purposes of certification hearings, the charges against the juvenile are presumed to be true." In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). For a juvenile who is less than 16 years old at the time of an offense, there is no statutory presumption that judicial proceedings for the offense will be certified for adult prosecution. Minn. Stat. ' 260.125, subd. 2(a). [1] When the presumption for certification does not apply, but the state seeks to certify the proceedings, the court must find that the state has "demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety." Id., subd. 2(6)(ii). A demonstration of clear and convincing evidence

requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Clear and convincing proof will be shown where the truth of the facts asserted is "highly probable."

Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). In determining whether certification will serve the public safety, the trial court must consider the totality of the circumstances, addressing the following six factors:

(1) the seriousness of the alleged 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;

(2) the culpability of the child in committing the alleged offense, 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 guidelines;

(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 in the juvenile justice system; and

(6) the dispositional options available for the child.

Minn. Stat. ' 260.125, subd. 2(b). When considering these factors, the statute requires that the court "give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to the other factors." Id.

A. Seriousness of the Offense

The trial court concluded that T.V. had committed an "extremely serious offense." The trial court found that T.V. had fired at least five rounds from a semi-automatic weapon at the vehicles in which the victims were riding, on a public street, at three o'clock in the afternoon. The trial court further noted that the police report stated that the shots were fired at the height of the passengers' heads and that T.V.'s parole officer had characterized the assault as "vicious and cold-blooded." Remarking that T.V.'s actions were willful and deliberate and noting the sophistication of the weapon used, the trial court found that this factor favored certification.

Minn. Stat. ' 260.125, subd. 2(b), instructs the trial court to give great weight to the "seriousness of the alleged offense." On review of the record, we do not believe that T.V. has presented any evidence to mitigate the severity of his actions. In accordance with the findings of the trial court, we note that the time of day, type of weapon used, and location of the shooting are very troubling and heighten the severity of the offense. We conclude, therefore, that the trial court findings were not unsubstantiated and, on the basis of this factor, certification was indicated.

B. Culpability

Noting that T.V. may have planned the assault, the trial court concluded that his actions were willful and deliberate. Remarking that T.V. was carrying the gun and pulled the trigger, the trial court noted that there was no evidence of coercion or that he was acting in self-defense. Based on these findings, the trial court concluded that T.V.'s culpability was very high.

Although there is evidence that T.V. has not been physically aggressive in school or at home, we believe that his actions in this instance indicate a high level of culpability. Given the weapon used, a Tec-9 semi-automatic, and the positioning of his shots, we must presume that T.V. considered that the consequences of his actions would result in the commission of a very serious crime. One of the victims was wounded, and police reports indicate the bullet came from T.V.'s gun. We conclude that the trial court did not err in the determination that T.V.'s level of culpability was very high.

C. Prior Record and Programming History

The trial court acknowledged that T.V. did not have a prior delinquency record. The trial court, however, expressed concern at his failure to attend school, his behavior toward his parents, and his disregard for their rules. The trial court also noted that T.V. lied to his probation officer about his school attendance. Based on these factors, the trial court then concluded that T.V.'s behavior "does not bode well for him" in determining whether he could successfully complete a treatment program.

In addition to the "seriousness of the alleged offense," Minn. Stat. ' 260.125, subd. 2(b), also requires the trial court to give great weight to the juvenile's prior record of delinquency when determining the need for certification. Although T.V. does not have a prior juvenile record, we note that his first offense was very severe. We must also acknowledge T.V's truancy record, his parents' inability to control his behavior, and the lack of any evidence to show his participation in positive extracurricular activities. Although T.V.'s parents testified that he has not been physically abusive, they also testified that he "comes and goes as he pleases" and has been physically aggressive and verbally abusive toward them and toward his siblings. Furthermore, T.V. has lied to his parents and his probation officer about his school attendance. On this record, we cannot say that the trial court unfairly balanced the "seriousness of the alleged offense" with T.V.'s lack of a prior delinquency history in finding that this factor supported certification.

D. Dispositional Options and Non-offense-related Dangerousness

The trial court expressed extreme concern that there was "no secure facility available to house [T.V.] and, most importantly, to protect public safety." The trial court concluded that public safety would best be served by certifying him for prosecution as an adult.

The record indicates that the trial court gave careful consideration to the statutory factors. The evidence presented shows that (1) there is disputed testimony as to T.V.'s past gang activity; (2) there is some indication that he has acted abusively toward his parents and siblings; (3) he has little regard for authoritative supervision at home or in school; and (4) despite his lack of a delinquency history, the charged offenses are very serious. We conclude, therefore, that there is clear and convincing evidence to support the trial court's findings, and certification of T.V. to the jurisdiction of adult court was proper.

Affirmed.


Footnotes

[1]The presumption applies only if the child was 16 or 17 at the time of the offense, and the delinquency petition alleges a felony offense committed with a firearm or an offense that would result in a presumptive prison sentence under the sentencing guidelines.