This opinion will be unpublished and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
C3-98-206

In the Matter of the Welfare of:
D.K.E., Child.

Filed September 22, 1998
Affirmed
Amundson, Judge

Anoka County District Court
File No. J8-97-52948

John M. Stuart, State Public Defender, Charlann E. Winking, 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; and

Robert M. A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

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

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges the district court's order to certify him for adult prosecution, which was, by statute, presumptive. We affirm.

FACTS

On the late evening of November 1 and early morning of November 2, 1997, appellant D.K.E., with two or three other juveniles, committed three robberies using a pellet gun. First, at approximately 11:00 p.m., D.K.E. and two male juveniles, wearing ski masks, accosted 13-year-old Jeffrey Weigel while he was walking. D.K.E. put the pellet gun, which resembles a real gun, to Weigel's head and demanded money. The juveniles pushed Weigel to the ground, made him remove his Nike shoes, which they took, and kicked him in the head three or four times. Weigel, who gave them $10, had scrapes, bruises, a black eye, and required six stitches on his scalp.

Approximately a half-hour later, the three juveniles accosted 18-year old Roy Skiles and 12-year-old Elizabeth Bussey as they were walking. The juveniles ordered Elizabeth to the ground and held the pellet gun to Skiles's head, saying they would kill him. After taking ear medicine from Elizabeth's pocket, the juveniles ran away.

Shortly after midnight, the juveniles began following Nathan Minion and Michael Morin as they were walking. The juveniles came up close behind them, and D.K.E. threatened Minion and Morin with the gun, demanding money and valuables. Minion surrendered his wallet and leather gloves; Morin gave them his leather gloves and $20.

At approximately 1:00 a.m., Anthony Miller noticed and became suspicious of the three juveniles running down the street. After getting into his car, he noticed the three, with at least one other person, in a blue Honda. He followed them in his car, and D.K.E. stood up through the Honda's sunroof and began shooting at Miller's car. As the shooting continued, Miller continued to follow the Honda as he called the police on his car phone.

The police stopped the car. Besides D.K.E. and his 17-year-old girlfriend, who was driving, the Honda held two 17-year-old males and a 13-year-old girl. The police found a pellet gun and Minion's and Morin's gloves in the car and Minion's wallet on the ground near the car. Miller, Minion, and Morin each identified three of the juvenile males (including D.K.E.), and the juveniles admitted to the offenses when they were questioned. The state filed a delinquency petition and moved for certification for adult prosecution. After a psychological evaluation and certification study were completed, the juvenile court held a certification hearing. The juvenile court certified D.K.E. for adult prosecution. This appeal followed.

D E C I S I O N

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 D.K.E. was 16 years old at the time of the offenses, because the offenses with which he is charged carry a presumptive sentence,1 and because he used a firearm in the commission of the crimes, his certification was presumptive. See Minn. Stat. 260.125, subd. 2a (1996). Therefore, D.K.E. had the burden of demonstrating by clear and convincing evidence that public safety could be served by retaining the proceedings in the juvenile court. See id. The juvenile court considers the following statutory factors in determining whether the public safety is served by certification:

(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). 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. We review the six factors in light of the facts of the case:

I. Seriousness of the Crime

For the purposes of certification, the juvenile is presumed guilty of the alleged offenses. In Re the Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995), review denied (Minn. February 9, 1996). The juvenile court, in determining that the crimes were "extremely serious," noted that a firearm was used, that two victims were juveniles, that one juvenile suffered gratuitous injury when D.K.E. kicked him in the head, and that the crimes were committed by three or more perpetrators. All these factors are reasonable in considering the seriousness of a crime in a certification hearing. See Minn. Stat. 260.125, subd. 2b (1) (1996) (use of firearm is a factor in determining seriousness of offense committed by juvenile); Minn. Sent. Guidelines II.D.103 (2)(b)(1) and Minn. Stat. 260.125, subd. 2b (1) (1996) (vulnerability due to age of the victim is a sentencing guidelines aggravating factor, which makes it a factor to consider in determining seriousness of offense for certification purposes); Minn. Sent. Guidelines II.D.103 (2)(b)(2) and Minn. Stat. 260.125, subd. 2b (1) (1996) (particular cruelty is a sentencing guidelines aggravating factor, which makes it a factor to consider in determining seriousness of offense for certification purposes); In re Welfare of J.S.J., 550 N.W.2d 290, 293 (Minn .App. 1996) (commission by multiple perpetrators, as an aggravating factor under the sentencing guidelines, is a proper factor in considering the seriousness of offense).

D.K.E. argues that the firearm he used in the commission of the crime was not a "real" gun, but a pellet gun, and therefore should not be considered in determination of the seriousness of the crime. The use of firearms is an aggravating factor for two reasons: (1) the possibility of death or serious bodily injury whenever a firearm is brandished and (2) the fear and vulnerability of victims being threatened with a firearm. The second reason applies to the facts of this case, where the victims believed the pellet gun to be authentic. D.K.E. not only used the pellet gun to perfect the robberies, but also pressed the gun barrel to one of the victim's temple and threatened to kill him. The use of the pellet gun was properly considered in determining the seriousness of the crimes.

D.K.E. notes that only one of the victims was physically injured. This is hardly exculpatory. Particular cruelty need involve only a single victim. It is not necessary that it involve more.

II. Culpability and Mitigating Factors

The juvenile court found that D.K.E. was the most culpable of the perpetrators: he arranged to get the gun with the expressed purpose of "jacking" someone; he motivated the others to commit the crimes; and he mercilessly kicked the victim who later required stitches. There were no mitigating factors.

III. Prior Record of Delinquency

D.K.E. has a prior record of delinquency. The offenses on his record are misdemeanors: misdemeanor assault and theft, disorderly conduct, assault, possession of drug paraphernalia, violation of probation, use of alcohol, and tampering with a motor vehicle. Ascending the ladder of criminal conduct, the court noted that DKE's offenses were of increasing severity.

IV. Programming History

The juvenile court noted that in D.K.E.'s extensive programming history, his participation has been poor. Discharged twice from chemical dependency treatment for failure to follow rules, he also has several probation violations. He has been disrespectful and defiant to staff members at Anoka County Juvenile Center. D.K.E. argues that all his programming in the past was short-term and that he failed to internalize the lessons of the treatment. He may be correct. Perhaps a longer-term prison solution to his antisocial behavior would be beneficial. In any event, we reject D.K.E.'s puerile rationalizing of his poor participation in programs designed to help him.

V. Adequacy of Punishment in Juvenile System

The juvenile court determined that, given the severity of the offenses, the year-long placement recommended by the probation officer in the certification report is too short to change D.K.E.'s behavior. D.K.E. argues that the program includes three years of additional placement, chemical dependency treatment, and structured aftercare. D.K.E. also notes that both the court-ordered psychologist and the probation officer who did the certification study believed that the juvenile program was suitable. However, several other witnesses at the hearing testified they did not believe that the juvenile system would provide adequate punishment.

VI. Dispositional Options

The options available to the juvenile court in a presumptive certification case are extended juvenile jurisdiction (EJJ) and certification. D.K.E. argues that EJJ was intended for cases precisely like his own, involving children, with their own special needs, who have committed more serious crimes. But this is a discretionary call for the judge, which is not to be reversed lightly.

This record does not reflect that the juvenile court erred in certifying D.K.E. for adult certification.

Affirmed.

1. D.K.E. is charged with three counts of aggravated robbery in the first degree, pursuant to Minn. Stat. 609.245, subd. 1 (1996); two counts of second-degree assault, pursuant to Minn. Stat. 609.05, subd. 1 (1996); and one count of reckless discharge of a firearm toward another while in a motor vehicle (drive-by shooting), pursuant to Minn. Stat. 609.66, subd. 1e (1996).