This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Welfare of: A.G.G.

Filed September 9, 1997


Huspeni, Judge

Hennepin County District Court

File Nos. 2718157397

William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Asst. Public Defender, 317 2nd Ave. S., Suite 200, Minneapolis, MN 55401 (for appellant A.G.G.)

Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Asst. County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent state)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



Appellant seeks review of the district court's decision to certify him as an adult. Because we see no abuse of discretion in the certification, we affirm.


In October 1995, appellant A.G.G. was charged with first- and second-degree murder and motor vehicle theft for the drive-by shooting of two teenagers, K.J.C. and T.R.T. In conjunction with those charges, a motion was filed to certify appellant as an adult according to Minn. Stat. § 260.125 (1996). In January 1996, after an indictment by a grand jury and a finding of probable cause, the district court certified appellant as an adult. He subsequently appealed.

On appeal to this court he argued that both a pre-probable cause evidentiary hearing and a probable cause hearing were required before the court could certify him as an adult. Appellant also asserted that there was not clear and convincing evidence to prove he was a threat to public safety and that the court failed to make the detailed findings required by Minn. Stat. § 260.125, subd. 5 (1996).

This court remanded the case for failure to make sufficient findings relating to appellant's threat to public safety. In doing so, however, this court held that a pre-probable cause evidentiary hearing and a probable cause hearing are not required when a juvenile has been indicted by a grand jury. Lastly, this court refused to rule on the sufficiency of the evidence because of the lack of findings in the record.

On remand, the district court modified its findings to reflect appellant's threat to public safety using the six-factor test set out in Minn. Stat. § 260.125, subd. 2b (1996), and certified appellant as an adult. On this second appeal, appellant again challenges the sufficiency of the district court findings and asserts that there was not clear and convincing evidence to warrant his certification as an adult.


1. Minn. Stat. § 260.125, subd. 5

Whether the court acted within the requirements of Minn. Stat. § 260.125, subd. 5 (1996), is a question of law. This court reviews questions of law de novo. Hutt Consultants v. Construction Maintenance, 526 N.W.2d 62, 64 (Minn. App. 1995).

Minn. Stat. § 260.125, subd. 5, requires that adult certification orders "contain in writing, findings of fact and conclusions of law as to why public safety is not served by retaining the proceeding in the juvenile court." Minn. Stat. § 260.125, subd. 2b, sets out six factors for determining a person's threat to public safety:

(1) the seriousness of the alleged offense * * * including * * * use of a firearm, and the impact on any victim; (2) the culpability of the child 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 available in the juvenile justice system; and (6) the dispositional options available for the child.

[T]he 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 * * *.

On remand, the district court applied the six-factor test.[1] In its conclusions of law, the district court found that: (1) appellant used a firearm in the commission of two murders; (2) appellant planned the murders carefully by obtaining a "clean" car; (3) appellant had a prior record of one gross misdemeanor; (4) appellant failed in numerous treatment programs and successfully completed only one; (5) there is not sufficient time to treat appellant; and (6) there is no other viable option for treatment.

This application of the six factors to appellant's case meets the requirements of Minn. Stat. § 260.125, subd. 5.

2. Clear and Convincing Evidence

In adult certification hearings a court has considerable discretion; its decision will not be overturned absent a finding of 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 the purposes of certification, the facts are presumed to be true. Id.

Appellant asserts that there was not clear and convincing evidence to support the finding that public safety would not be served by retaining him in the juvenile system, as required by Minn. Stat. § 260.125, subd. 2(6)(ii) (1996). We disagree and note that the six-factor test requires the court to give greater weight to seriousness of the offense and appellant's prior record of delinquency than to other factors. Minn. Stat. § 260.125, subd. 2b.

a. Seriousness of the Offense

Appellant used a firearm to commit two murders at 3:00 p.m. on a street corner in Minneapolis. Appellant's probation officer testified that because two teenagers were shot in the front yard of a home at a time of day when people are outside doing activities such as yard work and walking home from school, the crime was very serious.

b. Culpability

The probation officer also testified that the participants took three days to carry out their plan to obtain a "clean" car that was not stolen or wanted for any reason. In addition, appellant admitted shooting a gun from the car, though he contends that the caliber of the gun he fired was different from that of the murder weapon.[2]

c. Prior Record

Appellant has admitted to two misdemeanors for theft and disorderly conduct and a gross misdemeanor for giving false information to a police officer. Though the court erroneously stated that appellant had been convicted of felony motor vehicle theft, appellant's previous convictions warrant the conclusion that appellant had a prior record of juvenile delinquency.

d. Programming History

This factor requires analysis of appellant's willingness to participate meaningfully in programming options available to him. According to appellant's probation officer, appellant failed all of his treatment programs except that of the Hennepin County Home School. There, appellant's behavior was very poor for four months until he was placed on lithium, at which time his behavior improved and he successfully completed the program. After being furloughed, however, appellant stopped taking this medication and now states that he does not need to continue taking it.

The district court's conclusion that appellant failed to take advantage of all but one of the in-patient and out-patient treatment programs available to him was supported by the record and is not an abuse of discretion.

e. Adequacy of the Punishment or Programming Available

Appellant's only success in the juvenile justice system came at a time when he was taking lithium to control his behavior. He currently refuses to take lithium. Dr. James Alsdurf stated in his psychological report:

[I] would suggest that [A.G.G.] is not amenable to any treatment intervention at this time * * *. I see nothing to recommend that he remain in the juvenile system as he is a youngster who sees himself as having no specific problems, and he rejects the notion of treatment for any dimension of his life.

Appellant argues, however, that his conditional acceptance into the Rebound! program demonstrates that there is a suitable treatment option available in the juvenile system.[3] The problem is that Rebound! would keep appellant for a maximum of three to four years and only 11 out of 170 of its patients are murderers.

The district court's conclusion that programming options and punishment available in the juvenile system are insufficient because of appellant's age and the seriousness of the offense is supported by the record and is not an abuse of discretion.

f. Dispositional Options Available

Appellant's repeated failure in treatment options demonstrates that his dispositional options are seriously limited. The only success that appellant experienced in treatment occurred while he was taking lithium, but the Rebound! program proposed by appellant does not accept people taking psychotropic medication. Also, appellant's probation officer stated that, although the Rebound! program was the most secure, there were not any adequate dispositional options available. The district court's conclusion that there were no dispositional options available was supported by the record and was not an abuse of discretion.

As a result of the testimony and the certification studies presented, and in view of the particular emphasis that must be given to the severity of appellant's offense and his prior history, the court's conclusion that public safety would not be served by retaining appellant in the juvenile system was not an abuse of discretion.


[ ]1Appellant asserts that he was prejudiced by use of the six-factor test because the test focuses on the seriousness of the offense and appellant's prior record. However, this court stated in the previous appeal that the district court must look at the six factors established by the statute. In re A.G.G., No. C3-96-881, unpub. op. at 4 (Minn. App. Dec. 18, 1996). The holding in a previous appeal becomes the law of the case in subsequent appeals. Chippewa County Bank v. Kief, 179 Minn. 284, 288-89, 229 N.W. 130, 132 (1930). We hold, therefore, that the district court was obligated to use the six-factor test and appellant was not prejudiced.

[ ]2Appellant contends that because: (1) he did not admit to firing the fatal rounds; (2) there is no statement from the other alleged assailants; and (3) one of the victims may have shown a gun, the findings do not support clear and convincing evidence. However, In re Welfare of K.C., 513 N.W.2d 18, 21 (Minn. App. 1994), review denied (Minn. May 17, 1994), held:

Just as an adult defendant may be charged as an accomplice under Minn. Stat. Sec. 609.05 (1992), a juvenile may be referred for adult prosecution based on that degree of participation.

The same is true in this case where appellant's activities reach at least the level of accomplice liability.

[ ]3Rebound! is a privately funded organization in Colorado that takes delinquent children and rehabilitates them on the theory that delinquent behavior is learned and can be unlearned through proper education.