This opinion will be unpublished and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 J.L.L., Child.

Filed June 2, 1998


Amundson, Judge

Olmsted County District Court

File No. J2-97-50848

John M. Stuart, State Public Defender, Dwayne Bryan, Assistant State 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, Raymond F. Schmitz, Olmsted County Attorney, J. E. Mesenbourg, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.



J.L.L. challenges the district court's certifying him as an adult for the prosecution of a first-degree murder charge. We affirm.


Around 3 a.m. on June 10, 1997, police officers discovered the body of James Bernik lying in a creek in Essex Park in Rochester. The cause of death was asphyxiation, but Bernick had also been badly beaten and shot in the shoulder with a .25 caliber bullet. Appellant (born September 21, 1981) J.L.L. and his brother, also a juvenile, were arrested in connection with the killing. The Olmsted County Attorney filed a petition alleging delinquency for the commission of second-degree murder. The grand jury subsequently indicted J.L.L. for first-degree murder.

The county attorney moved to certify J.L.L. as an adult for prosecution purposes. The district court held a certification hearing and certified J.L.L. This appeal followed.


Juvenile courts are given considerable latitude in determining whether certification for adult prosecution is appropriate. In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989). The determination to certify a juvenile defendant will not be reversed on review unless the juvenile court's findings are "clearly erroneous so as to constitute an abuse of discretion." Id.

Here, because J.L.L. was fifteen years old at the time of the offense, there was no presumption of certification. See Minn. Stat. § 260.125, subd. 2a (1996). Therefore, the prosecutor had the burden of demonstrating by clear and convincing evidence that retaining J.L.L. in the juvenile court did not serve public safety. See Minn. Stat. § 260.125, subd. 2 (6) (ii) (1996). In determining whether the public safety is served by certification, the juvenile court considers the following statutory factors:

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;

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;

the child's prior record of delinquency;

the child's programming history, including the child's past willingness to participate meaningfully in available programming;

the adequacy of the punishment or programming available in the juvenile justice system; and

the dispositional options available for the child.

Minn. Stat. § 260.125, subd. 2b (1996). The statute also dictates that the most important factors in the determination are the seriousness of the alleged offense and the child's prior record of delinquency. Id. Here, J.L.L.'s appeal focuses on two issues: (1) that the juvenile court improperly assessed J.L.L.'s culpability, and (2) that the juvenile court improperly considered unadjudicated delinquent behavior in its assessment of J.L.L.'s prior record. A review of the six factors, in light of the facts of the case, is appropriate.

1. Seriousness of the offense

This weighted-factor strongly speaks in favor of certification, especially knowing that for certification, the juvenile is presumed guilty of the alleged offense. In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. 1996). The alleged offense here is first-degree murder, the most infamous crime we contemplate. In addition, there was ample evidence of particular cruelty, an aggravating factor under the sentencing guidelines. See Minn. Sent. Guidelines II.D.2.b.(2). Prior to his death by strangulation, Bernik was beaten so severely that post mortem, he was unrecognizable. He had been shot in the shoulder; suffered numerous face and head injuries (officers found his teeth on the ground in a depression that appeared to have been made by his head); sustained multiple chest and abdominal contusions, many made with the butt end of a rifle; and there was a hemorrhage in his kidney area. Further, there was evidence that J.L.L. threatened Bernik prior to his death and that J.L.L. and his brother both were trying to purchase the rifle used in the beating of Bernik the night of the murder.

Culpability and mitigating factors

J.L.L. asserts that the juvenile court improperly assessed his culpability in the killing. In particular, J.L.L. argues that the juvenile court's statement in its memorandum, "there is no showing that the child played a minor or passive role in the crime or participated under circumstances of coercion or duress," shows that the juvenile court improperly placed the burden on J.L.L. to show that he had less culpability. This is wrong. In a non-presumptive certification case, it is the state's burden to demonstrate by clear and convincing evidence that the public safety is not served by maintaining the proceedings in the juvenile court.

Here, however, J.L.L. was charged by a grand jury with first-degree murder. This charge, by its nature, embraces a high degree of culpability. Were there any mitigating factors? The emphatic silence of the record in this regard is deafening. While the juvenile court may have incorrectly phrased its commentary on this issue, it is clear that the juvenile court accurately assessed J.L.L.'s culpability.

Prior record of delinquency

J.L.L. argues that the juvenile court improperly considered unadjudicated juvenile behavior in assessing his record. In particular, he argues that the juvenile court improperly considered evidence that J.L.L. had been a gang member in Washington.

A juvenile court may consider past gang-related activity in a certification hearing stemming from a gang-related incident. In re Welfare of K.M., 544 N.W.2d 781, 785 (Minn. App. 1996). J.L.L. asserts that "[t]here is no suggestion that Bernick's death was gang related." There was evidence that suggests that J.L.L. and Bernick were involved in dealing narcotics. In addition, Bernick told a friend and his probation officer that he was worried that J.L.L. and his brother were going to harm him because of their belief that he had cooperated with police in a narcotics arrest. While there may be no specific evidence that the murder was gang-related in the way we usually view a collection of miscreants, the evidence does suggest a gang-like mentality. The district court did not err by including evidence of gang-related activity, even of unadjudicated offenses.

In addition, the juvenile court's discussion of J.L.L.'s prior record was not limited to gang activity. Rather, it included J.L.L.'s criminal history, both in Minnesota and Washington, which included fourth-degree assault, multiple counts of illegal consumption of alcohol, and two counts of theft.

4. Programming history

J.L.L. has no objections to the juvenile court's assessment of his programming history.

5. Adequacy of juvenile justice system programming

The juvenile court found that it was "problematic" whether programming through the juvenile justice system would be effective, and regardless, the punishment offered by the juvenile justice system would not be proportionate to the gravity of the offense. J.L.L. argues that the juvenile court did not properly consider the option of extended juvenile jurisdiction (EJJ) through the juvenile justice system. Here, the record shows the juvenile court specifically considered EJJ. We note that the very thorough certification report, prepared by probation officer Lisa Wiebke and incorporating the report of court-appointed psychologist Sonia Carbonell, recommended adult certification. J.L.L.'s own psychologist, James Alsdurf, declined to make a contrary recommendation regarding J.L.L.'s certification.

6. Dispositional options available

The juvenile court found that dispositional options available in the juvenile justice system, including those available through EJJ, would be inadequate to serve public safety concerns.

Reviewing these factors in light of the facts of this case, particularly the seriousness of the offense and J.L.L.'s prior record of delinquency, which we are required by statute to weigh more heavily, it is clear that the state met its burden of demonstrating that adult certification of J.L.L. is necessary to ensure the interest of public safety. The juvenile system is not equipped to handle such a serious case involving wrenching brutality and utter disregard for human life.