This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-98-110

In the Matter of the Welfare of: D.N.G.

Filed September 29, 1998
Affirmed
Huspeni, Judge

Ramsey County District Court
File No. J296552402

James E. Ostgard, 2415 Foshay Tower, 821 Marquette Ave., Minneapolis, MN 55402 (for appellant D.N.G.)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Asst. County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Thoreen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant challenges the trial court's certification of him for adult prosecution, alleging that his culpability in committing the offense, his programming history, the adequacy of the punishment or programming available in the juvenile system, and the unavailability of dispositional options were not proven by clear and convincing evidence. Because we find no abuse of discretion, we affirm.

FACTS

Appellant D.N.G., then 15, and his friends drove to a St. Paul residence to continue a confrontation with two others that had begun earlier in the evening. In a parking lot adjacent to the residence, appellant pointed a revolver at two men, neither of whom he knew, while his companions took two dollars and a pager from them. Appellant fired five or six shots at the two men as they ran away after the robbery. One man was shot fatally and the other seriously injured. Appellant was arrested and charged in connection with the shootings.

The trial court certified appellant for adult prosecution. Appellant challenges the certification order, claiming the state did not prove by clear and convincing evidence four of the six statutory factors supporting adult certification. Appellant also asserts the court erred in failing to make a specific finding regarding appellant's non-offense-related dangerousness and abused its discretion by denying appellant's request to delay filing of the certification order. Finally, appellant asserts that he should have been designated as an Extended Jurisdiction Juvenile (EJJ).

D E C I S I O N

1. Statutory Factors

A district court has "considerable latitude" in deciding whether to certify an individual for adult prosecution. In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989). This standard also governs review of EJJ determinations. In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996). A court's decision will not be reversed "unless [the court's] 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).

We note initially that, because appellant was only 15 at the time of the offense, there is no presumption of certification as an adult. See Minn. Stat. 260.125, subd. 2a (1996) (presuming certification when a child 16 or 17 years old commits a felony offense while using a firearm).

In a nonpresumptive case such as this, the court may order certification if the state proves "by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety." Minn. Stat. 260.125, subd. 2(6)(ii) (1996). In determining whether public safety is served by certifying the matter, the legislature has directed courts to consider the following factors:

(1) 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;
(2) 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;
(3) the child's prior record of delinquency;
(4) the child's programming history, including the child's past willingness to participate meaningfully in available programming;
(5) the adequacy of the punishment or programming available in the juvenile justice system; and
(6) the dispositional options available for the child.

In 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.

Minn. Stat. 260.125, subd. 2b (1996). Appellant alleges that the state failed to meet its burden on factors (2), (4), (5), and (6).

a. Culpability

Appellant was charged with second-degree murder, attempted second-degree murder, first-degree robbery, and second-degree assault. The record demonstrates that appellant brought a firearm to the scene, pointed it at two men during the course of a robbery, and then shot the victims as they ran away.

Although appellant argues this offense was not one that involved a great deal of planning, the record indicates that appellant said to his friends earlier in the evening that he wanted to "smoke those dudes." Appellant also said to the passengers in the car immediately after the shooting, "I messed up. I missed them. I don't think I got them, let's go back." The evidence reveals that while appellant may not have carefully planned the shootings, he at least contemplated his actions in advance. By indicating he wanted to return to the scene, appellant demonstrated some intent to make sure his earlier objective was accomplished.

Appellant also claims that the shootings happened suddenly. However, evidence demonstrates that the confrontation ended after one vehicle had left the scene. Appellant fired his gun only after his friend challenged him. Moreover, appellant wanted to keep the gun after the shootings; his friend had to convince him to throw it away so it could not be found.

Because the record reveals appellant's high culpability for the offenses charged, the court did not abuse its discretion in finding the state met its burden on this factor.

b. Programming history

Appellant was involved in juvenile programming for 16 months prior to the shootings. Testimony revealed that he was initially placed on probation and then participated in an enhanced summer program. His family was also involved in counseling.

After an incident at school, appellant was placed at Boys Totem Town where he participated in juvenile programming. The record shows that appellant experienced some discipline problems at Totem Town. Upon release, he violated his release terms and was returned to Totem Town. When he was later released, he participated in various aftercare programs. The record reveals that appellant was in court on a probation violation two days prior to the shootings.

Appellant argues that the court ignored evidence of improvements he made within juvenile programming. He also contends that "in almost every case of [appellant's] failure, there was a corresponding failure in the juvenile or family system which explains the results." The record contains incidences of improvements appellant made while in juvenile programming. However, as noted by the director of juvenile probation services, the success of programming is not based on a juvenile's behavior while in the programs; rather, success is based on a juvenile's behavior after the programs. Evidence indicates that when not in a programming environment, appellant did not exhibit acceptable behavior.

While the family system may have failed appellant and certain aspects of the juvenile system provided less intense follow-up supervision than appellant now claims he needed, consideration of the entire record demonstrates that the court did not err in determining the state proved appellant's difficult programming history by clear and convincing evidence.

c. Adequacy of punishment and programming in the juvenile system

The court noted that if appellant remained in the juvenile system he would spend about 18 months in placement and would return to probation status until he turned 21. The court felt that this was inadequate punishment, given the seriousness of the offense, when compared with an adult presumptive sentence of approximately 300 months for second-degree murder.

The court's order reflects a careful balancing of the seriousness of the charges against the potential sentence. Concluding that appellant could not be treated within the period of time remaining in juvenile jurisdiction is a proper basis for determining that a juvenile is unsuitable for treatment. In re Welfare of Dahl, 278 N.W.2d 316, 319 (Minn. 1979).

The court also noted that the programming available to appellant in the juvenile system was inadequate. Appellant's expert psychologist testified that tests revealed that appellant was "remarkably reckless" and "does well in a controlled environment." The expert was careful not to make a recommendation regarding certification, testifying that he preferred to leave certification to the wisdom of the court, based on legal principles and public policy. The court was impressed with appellant's witness and afforded his testimony great weight. We see no abuse of discretion.

d. Available dispositional options

The court held that options available to appellant under an EJJ designation were inadequate because they did not provide enough placement time and that placing the appellant in the community after only approximately two years would pose a threat to public safety.

Appellant argues that the state's witnesses did not express "even minimal familiarity with more than one or two programs outside the State of Minnesota" and concludes that by not addressing available alternative programs, the state failed to meet its burden. Appellant also contends that he should have been allowed to reopen the record to present further testimony about other EJJ programs.

On cross-examination, the director of juvenile probation services stated that the certification study group concentrated primarily "on programming that's available within Minnesota * * *." He added that although they have contact with other programs, they "don't necessarily seek out programs on a national level." He testified that the study group considered programs like "Glen Mills, Clarinda Academy, Red Wing Training School, and Woodland Hills." His re-direct testimony indicated that in an adult program appellant would benefit from further programming in addition to a longer period of supervision, all of which was more conducive to public safety.

The state also questioned appellant's probation officer who testified as to her knowledge of available EJJ programs. She agreed that public safety would be better served if appellant were certified as an adult. In addition, the court-ordered psychological report recommended adult certification.

The court made commendably complete findings and determined that the available options under EJJ were insufficient because the court's jurisdiction would end when appellant reached the age of 21. The court focused on the lack of time for both placement and community supervision thereafter. Based on the entire record, we find the court did not abuse its discretion in concluding the state met its burden.

1. Non-offense-related dangerousness

The juvenile court must also consider non-offense-related evidence of dangerousness to determine if an EJJ designation serves the public safety. In re Welfare of C.L.S., 558 N.W.2d 12, 15 (Minn. App. 1997); In re Welfare of M.E.P., 523 N.W.2d 913, 925 (Minn. App. 1994), review denied (Minn. Mar. 1, 1995) ("state must present non-offense-related evidence of dangerousness in support of a reference motion"). The trial court did not make an express finding as to appellant's non-offense-related dangerousness, but it implicitly discussed this evidence throughout its order while analyzing each statutory factor.

Whether a showing of separate evidence of non-offense-related dangerousness is still required is unclear:

[N]on-offense-related evidence of dangerousness is not individually listed as a required factor to consider in the current statute, which was amended in 1994. See 1994 Minn. Laws ch. 576 14. In addition, the current statute expressly requires the court to give more weight to the seriousness of the offense and the prior criminal history when determining the threat to public safety. Minn. Stat. 260.125, subd. 2b. Thus it is questionable whether the current statute requires the state to present separate evidence of non-offense-related dangerousness.

In re Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997) review denied (Minn. Feb. 19, 1998).

Even if we assume a separate showing of non-offense-related dangerousness is required, this case involves a greater showing of such dangerousness than that found in In re Welfare of D.F.B., 433 N.W.2d 79 (Minn. 1988), which upheld adult certification for a 17-year-old who, prior to murdering his family, exhibited no behavior suggesting he might be a danger to public safety. The defendant in D.F.B. had no prior contact with the juvenile system; his record was exemplary. In re Welfare of D.F.B., 430 N.W.2d 475, 477 (Minn. App. 1988), aff'd, 433 N.W.2d 79 (Minn. 1988). Further, the record in D.F.B. did not contain any psychological information supporting certification. Id. Unlike the defendant in D.F.B., appellant here has a juvenile record indicating he is prone to reckless behavior and destructive influence, and testimony from his own psychologist as well as from the court-appointed psychologist shows that he has anger control issues. Appellant more fully meets the non-offense-related dangerousness criterion than even the defendant in D.F.B. did.

Furthermore, in In re Welfare of K.P.H., 289 N.W.2d 722 (Minn. 1980), a case in which the trial court reversed the defendant's adult certification based on a lack of non-offense-related dangerousness, the court found that the defendant was amenable to treatment, had been only an accomplice, was not aware a killing was contemplated, would not have condoned the killing, would not have used the gun himself, and had argued against the killing. Id. at 724-25. Appellant here starkly contrasts with the defendant in K.P.H. Several experts testified that appellant was not amenable to treatment. Appellant was the actual shooter, brought the gun to the scene, spoke about the incident beforehand, used the gun himself, and argued that he wanted to "go back" to determine if his shooting had been successful.

Finally, in Dahl, 278 N.W.2d at 320-21, the case was remanded to the trial court to examine evidence of amenability to treatment and dangerousness in regard to a juvenile of "exemplary background" who had been referred for prosecution as an adult. Dahl is distinguishable from this case.

3. Denial of post-hearing motion

A trial court's ruling on a continuance will not be reversed absent a clear abuse of discretion. In re Welfare of J.S.J., 550 N.W.2d 290, 292 (Minn. App. 1996). Under Minn. R. Juv. Proc. 18.06, subds. 1, 2, a trial court has 15 days from the hearing to enter its certification order and may extend that period for an additional 15 days for good cause.

The court denied appellant's request for an extension, holding that he had been excellently represented by his previous attorney. Additionally, in consideration of the record, the trial court, within its discretion, found that appellant did not demonstrate good cause to reopen the record for further development. Because appellant failed to show good cause, and based on our review of the entire record, we conclude that the court did not err in denying appellant's motion.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.