This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1787

In the Matter of the Welfare of:

E.A.S.

Filed July 22, 1997

Affirmed

Randall, Judge

Hennepin County District Court

File No. 173017-97

William E. McGee, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant).

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent).

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

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

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

RANDALL, Judge

Appellant argues the juvenile court erred when it refused to conduct a pre-probable cause evidentiary hearing to determine the admissibility of certain evidence and that the juvenile court erred in certifying him as an adult. We affirm.

FACTS

On April 24, 1996, the victim, M.L.O., was awakened at 3:00 a.m. to find appellant E.A.S. straddling her as she lay in her bed. Appellant covered her face, took off his pants, and penetrated her vagina with his penis. Appellant then bound M.L.O.'s hands and feet and searched her home. Appellant returned later and attempted to untie M.L.O.'s legs with a knife. M.L.O. recalled feeling something sharp in her back and was afraid that appellant was going to use the knife on her. Appellant forced M.L.O. onto her hands and knees, licked her vagina with his tongue, and attempted to penetrate her anally with his penis. Unable to penetrate her anally, appellant penetrated M.L.O. vaginally with his penis.

Appellant bound M.L.O. again and returned to searching her home. M.L.O. was able to free herself, call 911, and escape through a bedroom window. She ran to a neighbor's house and on her way, observed appellant loading a stereo and television from her house into a van parked in the driveway. She then saw appellant get into the van.

While M.L.O. was standing outside her house, Minneapolis police officers arrived. When asked where the suspect was, M.L.O. pointed to the van. An officer saw the driver's side door of the van close shut and the reverse lights come on. The van backed up, slammed into a squad car, and then fled at a high rate of speed. Another squad car just arriving at the scene took up pursuit, chasing the van at high speed through the residential neighborhood. Approximately seven blocks from M.L.O.'s home, the van stopped and the driver fled after ramming a stopped squad car. Officers immediately pursued the driver on foot. The officers, assisted by a canine unit, soon discovered and apprehended appellant in a nearby parking lot. A television, stereo, and other items from M.L.O.'s home were found in the van. After being advised of his Miranda rights, appellant admitted to raping M.L.O. and taking the television, stereo, food, cash, and other items from M.L.O.'s home.

At the time of the incident, appellant was absent from a court-ordered placement at Glen Mills, a residential juvenile treatment center. Previously, appellant had been designated as an extended jurisdiction juvenile (EJJ).

Appellant filed a motion to suppress his statements, arguing the police had illegally arrested him and that his statements were obtained in violation of the recording requirement of State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).[1] In addition, appellant sought to suppress the evidence obtained pursuant to the search warrant, arguing that the warrant was defective because it failed to disclose, in part, that the alleged victim was unable to identify her attacker and that she was uncertain how many individuals were in her home during the attack. As a consequence, appellant argued that there was no probable cause to search his body for hair, saliva, and blood samples. Appellant moved the juvenile court for a pre-probable cause evidentiary hearing to challenge the admissibility of this evidence.

The juvenile court denied appellant's motions and ruled that, based on the record, probable cause existed. The court set the case on for an adult-certification hearing.

At the certification hearing, the juvenile court noted that the case was a presumptive certification matter. The juvenile court considered the public safety factors set forth in Minn. Stat. § 260.125, subd. 2b (1996), and Minn. R. Juv. P. 32.05, subd. 3, and concluded that appellant failed to show by clear and convincing evidence that retaining the matter in juvenile court would serve the public safety. The juvenile court certified the case to adult district court. This appeal follows.

D E C I S I O N

In juvenile certification cases, "the juvenile court is vested with broad discretion in deciding whether probable cause exists, and its findings will not be disturbed on appeal unless clearly erroneous." In re Welfare of E.Y.W., 496 N.W.2d 847, 850 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993) (citation omitted).

In juvenile certification proceedings, the juvenile court must find probable cause, "as defined by the rules of criminal procedure * * * to believe the child committed the offense alleged by [the] delinquency petition." Minn. Stat. § 260.125, subd. 2(5) (1996). Such a showing of probable cause shall be made in accordance with Rule 11 of the Minnesota Rules of Criminal Procedure. Minn. R. Juv. P. 32.04, subd.3(B) (1996) (currently contained in Rule 18 of the Minnesota Rules of Juvenile Procedure and apply to actions commenced or arrests occurring on or after 12:00 a.m., August 1, 1996). Pursuant to Rule 11.03, "[a] finding by the court of probable cause shall be based upon the entire record including reliable hearsay in whole or in part." Minn. R. Crim. P. 11.03. In a certification hearing, "[t]he court may receive any information, except privileged communication, that is relevant to the certification issue, including reliable hearsay and opinions." Minn. R. Juv. P. 32.04, subd. 4(B) (1996). Consequently, the entire record of the case is to be scrutinized, including evidence inadmissible at trial. In re Welfare of E.Y.W., 496 N.W.2d at 850.

In the present case, appellant, citing State v. Florence, 306 Minn. 442, 239 N.W.2d 892 (1976), modified by State v. Rud, 359 N.W.2d 573, 579 (Minn. 1984), argues that the juvenile court is required to hold an evidentiary hearing prior to determining whether probable cause existed. Appellant contends that if an evidentiary hearing had been held, the juvenile court would have suppressed his statements to the police and the physical evidence obtained pursuant to the search warrant. With this evidence excluded, the juvenile court would have had no evidence from which to conclude probable cause existed that appellant committed the charged offenses.

This very argument was rejected in In re Welfare of E.Y.W. In E.Y.W., the juvenile was charged with murder, and the state sought to certify him as an adult. As here, the juvenile argued he was entitled to a pre-probable cause evidentiary hearing to challenge the admissibility of certain incriminating statements he made to police. The juvenile court denied E.Y.W.'s request, stating that it was "a post-reference, adult court matter." 496 N.W.2d at 849. In affirming the juvenile court, this court held that[b]ecause Rule 11.03 mandates that the finding of probable cause be based upon the entire record, E.Y.W. is not entitled to a pre-probable cause evidentiary hearing which could preclude the court from examining the entire record.

Id. at 850. The court went on to hold that "[the juvenile] is still free to challenge the admissibility of evidence if an adult court trial is warranted." Id.

Although appellant attempts to distinguish this case from E.Y.W., the juvenile rules, the certification statute, and E.Y.W. establish that whatever the basis for challenging the admissibility of evidence, a juvenile court may, but is not required to, hold a pre-probable cause evidentiary hearing to determine the admissibility of certain evidence. The purpose of a certification hearing is to determine "the propriety of prosecuting the juvenile as an adult." In re Welfare of W.J.R. 264 N.W.2d 391, 393 (Minn. 1978). This is accomplished by examining all the evidence in the record to determine whether the juvenile can be treated within the juvenile system without endangering the public safety. Minn. Stat. § 260.125, subds. 2(6)(ii), 2b (1996). While the juvenile court has the discretion to hold a pre-probable cause evidentiary hearing, it is not required to do so. Appellant is still free to challenge the admissibility of his statements and the fruits of the search warrant in his trial in adult court.

Appellant argues that had the juvenile court held an evidentiary hearing, it would have suppressed the statements he made to police and the physical evidence obtained pursuant to the search warrant. Because the juvenile court denied appellant's request for an evidentiary hearing, it did not address the merits of appellant's suppression arguments, nor did it hear testimony or receive evidence on the issue. Consequently, the record is not developed on this issue. It would be premature for this court to rule on appellant's suppression arguments; thus, we decline to do so.

Next, appellant argues that the juvenile court erred in certifying him to adult district court. Appellant concedes that this is a presumptive certification case pursuant to Minn. Stat. § 260.125, subd. 2a (1996), but claims he rebutted the presumption, showing by clear and convincing evidence that the public safety is served by retaining the case in juvenile court.

In certification proceedings, "a 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 K.M., 544 N.W.2d 781, 784 (Minn. App. 1996) (citation omitted). Presumptive certification arises when the case involves an offense committed by a child if: (1) the child is 16 or 17 years old at the time of the offense, (2) the delinquency petition alleges the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes, or the child committed any felony offense while using a firearm, and (3) probable cause has been determined. Minn. R. Juv. P. 32.05, subd. 1 (1996). Once the juvenile court determines probable cause exists in a presumptive certification case, the burden shifts to the juvenile to rebut the presumption by demonstrating by clear and convincing evidence that retaining the proceeding in juvenile court serves the public interest. Minn. Stat. § 260.125, subd. 2a(2). The juvenile court is required to certify the juvenile who does not meet this burden. Id. The charges against the juvenile are presumed true in a certification hearing. In re K.M., 544 N.W.2d at 784.

In making its determination, the juvenile court must consider the six factors set forth in Minn. Stat. § 260.125, subd. 2b. These are: (1) the seriousness of the alleged offense in terms of community protection, (2) the child's culpability, including the level of planning and participation and mitigating factors, (3) the child's prior record, (4) the child's programming history, including willingness to participate in programming, (5) the adequacy of punishment or programming available in the juvenile system, and (6) the dispositional options available for the child. Id.

Here, the juvenile court made extensive findings on the six statutory factors and concluded that appellant had not met the burden of rebutting the presumption of certification. Appellant claims that he rebutted the certification presumption because he presented evidence that he was conditionally accepted to the Rebound High Plains Youth Center in Colorado. Appellant claims that he could, if need be, spend up to 32 months in the Rebound program. He also maintains that the EJJ placement would give the juvenile court just under five years to treat and supervise him. Appellant's contention, however, ignores the fact that he was already designated EJJ and that approximately nine previous placements within the juvenile system have been unsuccessful. The juvenile court found that more evidence on the Rebound program was needed before a referral to it would serve public safety and outweigh all the evidence in favor of adult certification.

Given the discretion afforded a juvenile court, we cannot say the court here abused its discretion in concluding that appellant failed to rebut the statutory presumption in favor of adult certification. Appellant simply relies on the fact that he was conditionally accepted into the Rebound program to argue otherwise. His argument tends to minimize the seriousness of the alleged offenses and tends to minimize the undisputed facts that appellant had already been designated as an EJJ and has had repeated unsuccessful placements within the juvenile system.

Affirmed.

[ ]1 By letter dated February 27, 1997, appellant withdrew his argument regarding any Scales violations.