This opinion will be unpublished and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

C1-96-1009

In the Matter of the Welfare of: H.J.H.

Filed December 10, 1996

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 11822494

William R. Kennedy, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for Appellant H.J.H.)

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

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent State of Minnesota)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

SCHUMACHER, Judge

H.J.H. appeals from an order of the juvenile court certifying him for prosecution as an adult. We affirm.

FACTS

H.J.H. was charged with two alternative counts of second-degree murder in violation of Minn. Stat. § 609.19(1), (2) (Supp. 1995). The petition alleges that when H.J.H. was 16, he fatally shot Joseph Bercier in the head and groin. According to the petition, a witness said that after H.J.H. shot Bercier, and Bercier was on the floor, H.J.H. shot him again.

The state moved for adult certification. The juvenile court ordered a reference study and psychological evaluation. Both the investigating probation officer (who conducted the reference study) and the court psychologist recommended certification. According to the reference study, H.J.H. admitted a charge of felony theft of a motor vehicle in March 1994. He was adjudicated delinquent and placed on probation. In April 1994, H.J.H. admitted a charge of felony third-degree burglary. He was adjudicated delinquent and placed at the Hennepin County Home School for 10 months. The burglary charge was based on an incident in which H.J.H. and a companion attempted to steal marijuana from a Minneapolis apartment. They wore masks and carried knives, and H.J.H.'s companion stabbed the occupant of the apartment.

H.J.H. called four witnesses at the certification hearing. Dr. R. Owen Nelsen, a clinical psychologist, testified that H.J.H. could benefit from programming in the juvenile justice system, and that public safety could be served by retaining H.J.H. in the juvenile system. Suzanne Gargaro Binge, a psychiatric social worker at the county home school, testified that H.J.H. lived without a family structure since he was eight, and that he made progress at the home school, but there was insufficient aftercare to help him maintain his positive behavior. Mark Chevalier, a Minneapolis Youth Diversion Program worker who counseled H.J.H. at the county home school, testified that H.J.H. grew during his time at the school. Chevalier said the Program would have continued to work with H.J.H., but H.J.H. was not eligible because his mother moved to Ramsey County. Jeffrey Rasmussen, a dispositional advisor at the Hennepin County Public Defender's Office, testified that he referred H.J.H.'s case to a juvenile residential program, which conditionally accepted H.J.H.

The juvenile court certified H.J.H. as an adult and he appeals.

D E C I S I O N

In determining whether adult certification will be ordered, a juvenile court has considerable discretion and we will not reverse its decision unless the findings are clearly erroneous so as to constitute an abuse of that discretion. In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). For purposes of certification hearings, the charges against the child are presumed to be true. Id.

Due to H.J.H.'s age and the nature of the offense, there is a presumption in favor of adult certification. See Minn. Stat. § 260.125, subd. 2a (Supp. 1995) (presumption of certification arises if (1) child was 16 or 17 years old and (2) alleged offense would result in presumptive commitment to prison under sentencing guidelines or firearm was used in offense). To rebut the presumption, the juvenile must show by clear and convincing evidence that retaining the matter in juvenile court serves public safety. Id. Factors to consider when analyzing this question of public safety are: (1) the seriousness of the alleged offense, (2) the culpability of the child, (3) the child's prior record of delinquency, (4) the child's programming history, (5) the adequacy of the punishment or programming available in the juvenile system, and (6) the dispositional options available. Minn. Stat. § 260.125, subd. 2b (Supp. 1995).

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.

Id. The juvenile court found that factors one, two, three, and four favored adult certification, while factors five and six weighed against certification. H.J.H. concedes in this appeal that the seriousness of the alleged offense and his culpability--factors one and two--weigh in favor of adult certification. He argues that the juvenile court erred in determining that the third and fourth factors also weigh in favor of certification. We disagree.

With respect to the third factor, H.J.H.'s prior record of delinquency is serious. He admitted to charges of felony theft of a motor vehicle and felony third-degree burglary. Conduct during the burglary included wearing face masks, brandishing knives, and the stabbing of a victim by H.J.H.'s companion. As for the fourth factor, H.J.H. argues that the ultimate failure in treatment was due to a lack of adequate follow-up. We note, however, that initial attempts to deal with H.J.H. in the juvenile system did not work because he repeatedly failed to appear for court. Moreover, the record indicates that while he made some progress in the juvenile system, he has problems when he is not closely supervised.

The juvenile court's findings are not clearly erroneous, and the court did not abuse its discretion in ordering certification.

Affirmed.