This opinion will be unpublished and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

C6-96-1040

In the Matter of the Welfare of: N. B.

Filed December 17, 1996

Affirmed

Amundson, Judge

Clay County District Court

File No. J0-50148

John M. Stuart, State Public Defender, Dwayne Bryan, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Todd S. Webb, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for respondent)

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

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

Amundson, Judge

N.B. appeals from the order certifying him for adult prosecution. He argues that the juvenile court erred in not giving sufficient weight to psychological evidence and that the juvenile court erred in concluding that he had not proved by clear and convincing evidence that the public safety will be served by retaining him as an extended jurisdiction juvenile (EJJ). We affirm.

FACTS

On February 14, 1996, appellant N.B. drove with three other juveniles to the residence of the principal of appellant's high school. When they were close to the home, J.H. told appellant to "kill the lights" and he did. Appellant drove the car slowly toward the home and J.H. picked up a .22 rifle (which belonged to appellant's father) they had brought along and fired seven shots into the residence in rapid sequence. After the seventh shot, appellant drove away quickly. It was later determined that all of the shots hit the bedroom where the principal's four-year-old son was sleeping.

On February 16, 1996, a petition was filed alleging that N.B. was a delinquent child for having committed the offenses of aiding and abetting assault in the second degree, furnishing a dangerous weapon, and aiding and abetting a drive-by shooting.

A juvenile court judge ordered the Minnesota Department of Corrections and the Lakeland Mental Health Center to prepare social and psychological studies to determine whether public safety would be served by certifying N.B. to the district court.

Following a hearing, the juvenile court granted the motion to certify N.B. to the district court to be tried as an adult. The next day, a criminal complaint was filed in district court charging N.B. with six counts of aiding and abetting assault in the second degree. This appeal follows.

D E C I S I O N

Before 1994, if a court found probable cause that a child committed the offense alleged in the delinquency petition, and the state proved by clear and convincing evidence that the child was (1) not suitable to treatment or (2) that the public safety would not be served by keeping the child in the juvenile court system, the court could order a "reference" for prosecution as an adult. See Minn. Stat. § 260.125, subd. 2 (1992).

The statute was amended in 1994. See Minn. Laws ch. 576, § 13. Now, for certain offenses, if the court finds probable cause that a child committed the offense alleged in the delinquency petition, it is presumed that the court will order a "certification." Minn. Stat. § 260.125, subd. 2a (Supp. 1995). For these offenses, it is the child's burden to prove, by clear and convincing evidence, that retaining the proceeding in juvenile court serves public safety. Id. The subdivision 2 provision regarding suitability to treatment was eliminated--leaving only the public safety element. If the court finds that the child has not rebutted the presumption by clear and convincing evidence, the court "shall certify the proceeding." Id. Because of N.B.'s age and the nature of the offense, the presumptive certification provision applies in this case.

In juvenile certification proceedings, the juvenile court has considerable discretion in determining if adult certification will be made and its decision will not be reversed absent 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 juvenile are presumed to be true. Id.

I. Weight of Psychological Evidence

In the memorandum accompanying its order, the juvenile court stated:

Now evidence of the Child's clean juvenile record is just one factor to consider, and psychological evidence that the Child is not likely to commit criminal offenses in the future no longer appears to be relevant. Therefore, this Court did not accord much weight to the psychological evidence, and only accorded the proper weight of the Child's juvenile record that is required under the present law.

N.B. argues that the juvenile court should not disallow psychological evidence or allow the evidence to be introduced but refuse to consider it.

The state agrees that psychological evaluations should be considered when deciding whether a juvenile should be certified to adult court. The state correctly notes that the juvenile court in this case did not disallow psychological evidence. The state also notes that the court did not refuse to consider the evidence. Even though the court stated that the evidence "no longer appears to be relevant," it also stated that it "did not accord much weight to the psychological evidence," indicating that it did consider it and give it some weight.

N.B. correctly notes that even though the suitability-to-treatment provision was eliminated from subdivision 2a, some consideration of treatment is required under subdivision 2b, which sets out factors to consider in determining whether public safety is served by certification. See Minn. Stat. § 260.125, subd. 2b(4),(5), (6) (Supp. 1995) (requiring consideration of child's programming history, adequacy of punishment or programming in juvenile justice system, and the disposition options available).

In this case, the juvenile court did allow the psychological evidence and considered the evidence, but just did not give it much weight. Because the statute requires the juvenile court to place relatively little weight on factors other than the seriousness of the offense and the child's prior record, and because determining the weight of psychological evidence is for the juvenile court's discretion, we conclude that there was no abuse of discretion. See Minn. Stat. § 260.125, subd. 2b (Supp. 1995) (in considering the public safety 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."); In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (weight to be given to psychological evaluation indicating that child was motivated towards and capable of changing his behavior was for trial court to determine), review denied (Minn. Aug. 20, 1996).

II. Clear and Convincing Evidence

N.B. challenges the court's determination that he did not rebut the presumption of certification by clear and convincing evidence. This court will not reverse a juvenile certification order unless the findings are "clearly erroneous so as to constitute an abuse of discretion." In re Welfare of T.L.J., 495 N.W.2d 237, 240 (Minn. App. 1993).

N.B. argues that the state was required to present non-offense-related evidence of dangerousness, and failed to do so. This court has noted that the current statute requires the court in a presumptive certification case to consider factors other than the seriousness of the offense. K.A.P., 550 N.W.2d at 12 (citing Minn. Stat. § 260.125, subd. 2b). Thus, it is still true that the charged offense alone does not determine the risk to public safety. Id. Now, however, the other evidence must be considered in light of the shifting of the burden of proof to the juvenile. Id.

In determining whether the public safety is served by certifying the case, the juvenile court is to consider the following factors: (1) the seriousness of the alleged offense; (2) the child's culpability in committing the alleged offense; (3) the child's prior record of delinquency; (4) the child's programming history; (5) the adequacy of the punishment or programming in the juvenile justice system; and (6) available dispositional options. Minn. Stat. § 260.125, subd. 2b (Supp. 1995). When 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.

Seriousness of Offense--The juvenile court found that the offense "was a serious one." The court noted that a gun was used during the commission of the offense, a child was almost struck by a bullet, and there was evidence that the victims "have been profoundly disturbed by the incident." The court also found that there were aggravating circumstances: (1) N.B. knew or should have known that vulnerable young children were in the home; (2) he participated in the offense with three other people; and (3) the fact that the shots were fired at an occupied home would be an aggravating factor for second degree assault. N.B. argues that the first and third aggravating factors are the same, and thus the court is double counting. However, even if he is correct, it only means that the court properly found two rather than three aggravating factors.

Culpability of Child--The juvenile court found that N.B. "was a culpable accomplice to the offense." The court noted the following factors: because he was the driver of the vehicle, N.B. had the ability to control the events that occurred at the time of the accident; the fact that he turned the car's headlights off at the time the shots were fired showed that he was an active participant in the commission of the offense; N.B. was the oldest, and presumably the most mature of the four juveniles involved in the incident; the gun used in the incident belonged to N.B.'s father, and thus he should have had the greatest opportunity of controlling the use of the gun; N.B.'s school record indicated that he is relatively intelligent, and that he had the capacity to exercise much better judgment; and there were no mitigating factors. N.B. argues that there was no discussion about shooting at the house before it happened. He also claims that there were mitigating factors--his remorse, honesty and cooperation with authorities. Even if this is true, it is just something for the juvenile court to consider and weigh--it would not mandate a different result.

Child's Record of Delinquency/Programming History--The juvenile court found that N.B. had no prior delinquency record. The court found that because N.B. had no prior delinquency record, he had not been enrolled in any rehabilitative program.

Adequacy of Programming or Punishment in Juvenile System--The court noted that both the juvenile court and St. Cloud (where he would likely be incarcerated) have good counseling programs. The court stated, however, that the juvenile court system did not have the ability to punish N.B. adequately considering the seriousness of the offense. N.B. notes that there is programming in the juvenile system to meet his needs. However, the juvenile court took this into account in making its decision and placed more emphasis on the inadequacy of punishment, which is permissible under the statute.

The court noted that none of the juvenile facilities are secure facilities, and that all of them are unlocked. N.B. claims that the court is substituting its judgment for the legislature's because the legislature has not made certification for such an offense mandatory. However, even if the legislature did not mandate incarceration, it left room for the court to exercise its discretion.

Available Dispositional Options--The court noted that if N.B. were designated as an extended jurisdiction juvenile, the worst disposition he could receive would be 10 months in a juvenile correction facility with an additional 90 days if an aggravated sentence were imposed. If convicted in adult court, N.B. could be committed to an adult facility for three years. The court stated that "in light of the seriousness of the offense, and the evidence of the Child's culpability, the adult sentence provides the most appropriate sentence under the circumstances of this case."

N.B. claims that the court's calculation is incorrect, and that EJJ would allow the juvenile court to retain jurisdiction for 37 months. Even if N.B. is correct, and the court were to retain jurisdiction for a longer period of time, the executed sentence would not be any longer, and that was the basis for the court's decision.

The legislature has placed the burden on the child in presumptive certification cases, and the court's determination in this case was not an abuse of discretion.

Affirmed.