This opinion will be unpublished and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 H.T.D., Child.

Filed June 16, 1998


Amundson, Judge

Hennepin County District Court

File No. 27-J9-97-59869

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

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Michael O. Freeman, Hennepin County Attorney, Donna Wolfson, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

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



H.T.D. challenges the district court's certification of him as an adult for the prosecution of first-degree attempted murder, second-degree attempted murder, and first-degree assault charges. We affirm.


On July 21, 1997, Ryan Newby was severely kicked and beaten resulting in severe head and body trauma, lacerations, and abrasions. As a result of the attack Newby remained in a coma for approximately one and a half months. The district court stated that, as of the last medical report, Newby was still confined to a wheelchair. Appellant H.T.D. (born August 7, 1979) and his brother, Devaries Dillard (an adult), were arrested in connection with the incident. The Hennepin County Attorney filed a petition alleging delinquency for the commission of first-degree attempted murder, second-degree attempted murder, and first-degree assault.

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


Juvenile courts are given considerable latitude in determining if 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 H.T.D. was seventeen years old at the time of the alleged offense and is alleged to have committed first-degree attempted murder, second-degree attempted murder, and first-degree assault, which, if convicted, carry presumptive commitments to prison under the sentencing guidelines, his certification was presumptive. See Minn. Stat. § 260.125, subd. 2a (1996).

The presumption of certification is overcome if the child demonstrates by clear and convincing evidence that retaining the proceedings in juvenile court serves public safety. Minn. Stat. § 260.125, subd. 2a; Minn. R. Juv. P. 18.05, subd. 1. If the district court finds that the child has not succeeded in rebutting the presumption by clear and convincing evidence, the court shall certify the child to adult court. Minn. Stat. § 260.125, subd. 2a.

The juvenile court considers the following statutory factors in determining whether the public safety is served by certification:

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, H.T.D. concedes that the first factor, the seriousness of the offense, and the second factor, the culpability of the child, favor certification. H.T.D. argues, however, that the charged offense alone does not determine the risk of public safety and that all the factors listed in Minn. Stat. § 260.125, subd. 2b, must be considered. See Matter of the Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996). A review of the six factors, in light of the facts of the case, follows.

Seriousness of the offense

H.T.D. concedes that this heavily weighted statutory factor weighs in favor of certification. For the purposes of certification, the juvenile is presumed guilty of the alleged offense. In Re the Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995). Because of the severity of the injuries suffered, as well as the seriousness of the charges, this factor supports adult certification.

Culpability and mitigating factors

H.T.D. concedes that this factor weighs in favor of certification. Witnesses reported that during the assault H.T.D. brandished a knife, inflicted most of the beating, and yelled at the victim, stating that he was going to kill him. H.T.D. also threw a charcoal grill at the victim as he lay unconscious. He and his co-defendant (his adult brother) did not cease their attack until a neighbor intervened with a baseball bat. One possible reason given for the attack was that the victim called a former girlfriend who was currently seeing H.T.D.'s brother.

Prior record of delinquency

H.T.D. had two prior felony adjudications at ages 14 and 15. The district court found that while the actual number of adjudications was not significant, the nature of the adjudications was. H.T.D.'s prior adjudications for third-degree assault and simple robbery represented serious crimes against persons. The juvenile court's finding that H.T.D.'s prior record of delinquency weighs in favor of adult certification is supported by the record.

Programming history

While H.T.D. contends that his only prior participation with the juvenile system was successful, it appears as though the primary reason for this was because H.T.D. sought and obtained a vacation of the court's order. The record reveals that H.T.D. was placed on surveillance with the understanding that he would be moving to Michigan with his family. During the interim, H.T.D. repeatedly violated his conditions of surveillance and tested positive for marijuana. Upon returning to Minnesota, H.T.D. was committed to a six-week BETA program.

The juvenile court recognized H.T.D.'s positive performance in the BETA program. The court, however, focused on H.T.D.'s failure to comply with its prior orders of probation and surveillance. An example of H.T.D.'s failure to comply with court orders is that the instant offense occurred while H.T.D. was on probation.

Adequacy of juvenile justice system

The juvenile court reviewed the testimony of Teri Trombley, investigating probation officer, and Diana Wilke, dispositional advisor for the public defender, as well as the report of Dr. Becky Reed, court-appointed psychologist. The court specifically noted that the two programs into which H.T.D. had been accepted had treatment programs averaging 15 months in length. Dr. Reed's assessment stated:

Programming in the Juvenile System does not appear to be adequate for punishment or programming as there are no options available in the juvenile system comparable to the adult presumptive prison sentence, therefore, the juvenile system could not adequately meet public safety needs.

The juvenile court properly determined that the lack of programming within the juvenile systems weighs in favor of adult certification.

Dispositional options available

The juvenile court found that the two programs H.T.D. had been accepted into, High Point/Rebound and Glenn Mills Schools Programs, weighed in favor of retaining the proceeding in juvenile court.

The last factor is the only factor that suggests retaining the proceeding in juvenile court. Because the five other factors, including the two statutorily weighted factors of the

seriousness of the offense and the juvenile's record support adult certification, the juvenile court did not abuse its discretion by certifying H.T.D. to adult court.