may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
Filed September 8, 1998
Hennepin County District Court
File No. J89752699
Leslie J. Rosenberg, Special Asst. State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Asst. County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Norton, Judge,[*] and Holtan, Judge.[**]
Appellant, who was presumptively certified as an adult because he was 16 when he committed criminal sexual conduct in the third degree, challenges the trial court's decision to certify him as an adult. Because we see no abuse of discretion in the decision, we affirm.
Appellant I.L.O., then a 16-year-old male, was with A.M.R., another 16-year-old male, and a juvenile female in A.M.R.'s home. Appellant invited the juvenile female into the bathroom. A.M.R. came into the bathroom; appellant left, and A.M.R. forced the juvenile to perform oral sex with him and to have intercourse. Appellant then returned to the bathroom and forced the juvenile female to have intercourse with him.
Appellant was first charged with one count of criminal sexual conduct in the third degree, then with another count of criminal sexual conduct in the third degree and with liability for crimes of another. The prosecutor moved to certify appellant and A.M.R. as adults pursuant to Minn. Stat. § 260.125. A.M.R. was certified; his certification was challenged, and this court affirmed it. In re Welfare of A.M.R., No. CX-97-1343 (Minn. App. Apr. 14, 1998). Following a social certification study, a psychological study, and five days of hearings, appellant was certified. He appeals.
Appellant is presumptively certified as an adult because he was 16 at the time of the offense and conviction would result in commitment to prison under the sentencing guidelines and applicable statutes. Minn. Stat. § 260.125, subd. 2a (1996). This presumptive certification can be rebutted only with "clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety." Minn. Stat. § 260.125, subd. 2a. It is the child, not the state, who bears the burden of providing evidence to rebut presumptive certification. Id.
To determine whether public safety would be served by retaining an individual in the juvenile system, the court must consider six 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.
Minn. Stat. § 260.125, subd. 2b (1996). In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and to the child's prior record of delinquency than to the other factors listed in this subdivision. Id.
The district court found that the first four factors, including the two which are to have greater weight, supported certifying appellant as an adult, while evidence on the fifth and sixth factors indicated that public safety could be served by retaining appellant in the juvenile system.
1. Seriousness of the alleged offense
Appellant allegedly had forced sexual intercourse with a juvenile female who was vulnerable after having been sexually assaulted by A.M.R. The victim's vulnerability is an aggravating factor under the sentencing guidelines. Minn. Sent. Guidelines II.D.2.b.(1). Appellant was one of multiple offenders working in concert; this is another aggravating factor. See State v. Frank, 416 N.W.2d 744, 749 (Minn. App. 1987), review denied (Minn. Feb. 8, 1988) (multiple defendants in sexual assault constitute an aggravating factor). The psychological effect on the victim was disastrous; she had already been in therapy for depression and suicidal thoughts and the assault intensified those problems, as well as causing difficult in sleeping, flashbacks about the assault, and panic attacks. All these factors support the view that this was a serious offense.
2. Culpability of the child, including mitigating factors
Appellant was responsible for getting the juvenile into the bathroom where she was raped first by A.M.R. and then by appellant. Appellant argues no mitigating factors; the court noted there were none and determined that appellant's culpability also weighed in favor of adult certification.
3. Prior record of delinquency
As a threshold matter, we note that this factor requires consideration not only of prior adjudications of delinquency, but of unadjudicated delinquent behavior. See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (refusing to require court to ignore two pending unrelated assault charges in a certification proceeding), review denied (Minn. Aug. 20, 1996).
The court observed that appellant has been adjudicated delinquent on admitted offenses of felony theft of a motor vehicle, gross misdemeanor fleeing a police officer, and twice on misdemeanor theft of property, and that plea negotiations led to the dismissal of numerous other charges, including a runaway citation, a truancy petition, driving without a valid license, gross misdemeanor damage to property in the third degree, minor consumption of alcohol, curfew violation, felony first-degree burglary, and a runaway/absenting citation. The court did not abuse its discretion in concluding that this record is not clear and convincing evidence that retaining appellant in the juvenile system would serve public safety.
4. Programming history
Appellant's plea negotiations led to his placement in a number of programs. In April 1996, he was committed to the Beta program at the Hennepin County Home School, which included a period in the secure unit and no time off for good behavior. Two days after his release, he was arrested for shoplifting, to which he admitted. By July 1996, appellant had been terminated from school and his mother reported that he was unmanageable at home and was spending time with A.M.R. in violation of his probation order. Appellant was also using marijuana, testing positive seven times between May 1996 and February 1997. In August 1996, following admission of the shoplifting, he was sentenced to 32 hours of work squad, to random urinalysis, to obey curfew and his mother, to remain law abiding, and to attend counseling. In February 1997, he was again ordered to participate in counseling, perform 24 hours of work squad, and have a chemical evaluation and follow the recommendations. He completed only about half of the first work squad assignment.
Appellant also attended the West Metro Educational Center. His attendance in summer 1996 was poor; it improved significantly in the fall of 1996 but declined prior to this offense in January 1997. Pending the outcome of this matter, appellant was placed on electric home monitoring but returned to the juvenile detention center because he violated the terms of the monitoring.
The court's conclusion that appellant's programming history does not provide clear and convincing evidence to retain him in the juvenile system was not an abuse of discretion.
5. The adequacy of the punishment or programming in the juvenile system
The court, after noting that it is unclear whether this factor gives greater weight to punishment or programming and determining to give greater weight to programming, found that the programming available in the juvenile system would be adequate and that this factor favored retaining appellant in the juvenile system.
6. Dispositional options available
When the court found that there were a number of options available to appellant as an extended jurisdiction juvenile, appellant had not turned 18. We note that some of those options are no longer available; they accept only juveniles who are not yet 18. There was no abuse of discretion in the finding that this factor favors retaining appellant in the juvenile system, although that finding is now substantially weakened.
In summary, the court did not abuse its discretion in concluding, on the basis of the first four factors, that there was not sufficient clear and convincing evidence that retaining appellant in the juvenile system would serve public safety to rebut the presumption that he should be certified as an adult.
Finally, appellant argues that sufficient evidence to rebut the certification presumption was provided by the testimony of three witnesses: a former teacher, a supervising probation officer, and a psychologist. While all three testified to positive traits in appellant, none of them testified that the interests of public safety, as opposed to appellant's own interests, would be served by retaining appellant in the juvenile system. Moreover, the testimony of the supervising probation officer went directly contrary to the recommendation of adult certification made by the investigating probation officer who reviewed appellant's record and interviewed him. Where experts' evidence conflicts, this court defers to the juvenile court's determination. K.M., 544 N.W.2d at 785.
There was no abuse of discretion in concluding that the presumption of adult certification was not rebutted.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Difficulties in obtaining the transcript delayed this appeal. Appellant is now 18.