This opinion will be unpublished and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:

T.H.W., Child.

Filed December 1, 1998

Affirmed; motion granted

Thoreen, Judge[*]

Anoka County District Court

File No. J29851045

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for appellant state)

John M. Stuart, State Public Defender, Patrick J. Fugina, Assistant Tenth Judicial District Public Defender, Suite 134, 229 Jackson Street, Anoka, MN 55303 (for respondent T.H.W.)

Considered and decided by Amundson, Presiding Judge, Foley, Judge,[**] and Thoreen, Judge.



Respondent T.H.W. was charged by delinquency petition with one count of drive-by shooting and three counts of second-degree assault (all felonies). See Minn. Stat. §§ 609.222, subd. 1, 609.66, subd. 1e(a) (1996). The state appeals from an order denying its motion to certify T.H.W. for adult prosecution and ordering the case designated as an extended jurisdiction juvenile (EJJ) prosecution. T.H.W. has filed a motion for attorney fees and costs. We affirm and award attorney fees and costs.


The delinquency petition alleges that in the early morning of April 4, 1998, T.H.W. shot at a vehicle occupied by three men. According to the probable cause statement in the petition, T.H.W. and two other juveniles had been cruising around the city of Anoka when they encountered the three victims driving an Acura. According to T.H.W.'s statement to police, the three men in the Acura had been staring at them at a stop light, and when T.H.W. challenged them, the Acura began following them. When they stopped at a house, the occupants of the Acura began threatening T.H.W., saying they were going to "shoot me and stuff." T.H.W. then called a friend with access to a pistol and arranged to meet. After the friend, G.S., had turned over the pistol, T.H.W., who had been driving earlier, switched to the passenger seat. T.H.W. admitted to police that he switched seats to be able to shoot at the Acura.

The delinquency petition alleges that T.H.W. fired six shots at the Acura. One window of the Acura was struck, and a bullet lodged in the car's gas tank cover.

The state filed a motion to certify T.H.W., who was 16 years old at the time of the offense, for adult prosecution. The certification study recommended certification and T.H.W., who bore the burden of rebutting the state's case because a presumption of certification applied under the statute, requested a psychological evaluation. The psychological evaluation concluded:

Although the programming within the juvenile system may be appropriate for [T.H.W.], it is my recommendation that the court give consideration to certification, based on the seriousness of the offense. Although [T.H.W.] has not had extensive programming through the juvenile system and has not had out-of-home placements, it is this examiner's opinion that he was presented with some long-term therapy opportunities and he chose to not make use of those.

At the certification hearing, T.H.W. presented the testimony of witnesses familiar with his school attendance problems, his prior participation in counseling, and his family life. The district court issued an order designating the proceeding an EJJ prosecution, implicitly denying the state's motion for certification. The court noted that under EJJ, T.H.W. would receive a long-term placement in an intensive juvenile program and have an adult sentence executed should any violation of the juvenile sentence occur. The court concluded:

Based on the fact that [T.H.W.] has never participated in a long-term program and that he will not receive the rehabilitation options in the adult system, the Court feels it is appropriate that these proceedings remain in juvenile court and be designated EJJ.


The district court has considerable latitude in determining whether to certify a juvenile for adult prosecution, and its decision will not be reversed unless based on clearly erroneous findings constituting an abuse of discretion. In re Welfare of J.S.J., 550 N.W.2d 290, 293 (Minn. App. 1996).

The state argues that the district court misconstrued the facts, particularly the facts of the offense, and abused its discretion in weighing the statutory factors governing certification decisions. We disagree.

It is undisputed that because T.H.W. (d.o.b. May 19, 1981) was 16 years old at the time of the offense and allegedly used a gun in committing it, there is a statutory presumption of certification. See Minn. Stat. § 260.125, subd. 2a (1996). T.H.W., therefore, had the burden of rebutting this presumption "by demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety." Id. In a presumptive certification case, the alternative to certification is designation as EJJ. Id., subd. 5 (1996).

The district court must consider six statutory factors in determining whether to order 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 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 district court must give greater weight to the seriousness of the alleged offense and the juvenile's prior record of delinquency than to the other statutory factors. Id.

The district court recognized that T.H.W.'s alleged offense of firing at an occupied vehicle was "very serious." Thus, it is not clear that the court's findings of fact regarding the offense significantly affected its weighing of the first statutory factor.

As to the second factor, the district court found that T.H.W. was "the culpable party" in the offense, but found mitigating factors, which the state disputes. We note that the district court heard testimony from T.H.W. but had to rely on the written records for the state's version of the offense. The court appeared to find T.H.W.'s testimony credible. Although a more complete presentation of the facts by the prosecution might have led to a different analysis of the offense, it is difficult to conclude the district court's findings are clearly erroneous.

The district court noted that T.H.W.'s history of delinquency, which included a third-degree assault (for stabbing another boy) and motor vehicle theft, was "significant." After noting pending Hennepin County charges and another shooting incident that T.H.W. had admitted, the court noted that T.H.W. had "only one incident involv[ing] injury to another person."

T.H.W.'s record of prior delinquency is significant, particularly considering his pending Hennepin County charges and his admission to another recent shooting incident, but not overwhelming. This court has held that the court may consider unadjudicated conduct, but for a limited purpose:

We conclude that to require the trial court to ignore the two pending assault charges would unduly limit the court's ability to accurately assess the risk to public safety. At the least, the pending charges are relevant to the conclusions in the psychological evaluation.

In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996).

Nor did the district court abuse its discretion in implicitly concluding that T.H.W.'s programming history weighed against certification. T.H.W.'s programming history did not include any long-term in-patient treatment programming. Moreover, T.H.W. presented evidence of satisfactory participation in outpatient treatment and counseling.

The district court concluded that a seven-month in-patient treatment program at the Anoka County Juvenile Center would provide adequate punishment. The court also concluded that commitment to prison would provide T.H.W. with no opportunity for rehabilitation. We construe the court's second conclusion in light of the court's concern that T.H.W. had never been provided with long-term in-patient treatment in the juvenile system. The court's conclusion that adult prison was not a satisfactory option for this particular juvenile, therefore, was not an abuse of discretion.

The district court thus apparently concluded that at least three of the statutory factors--T.H.W.'s prior programming history, the adequacy of punishment in the juvenile system, and the dispositional options--all favored EJJ designation rather than adult certification. Although the seriousness of the offense and the prior record of delinquency are the most important factors, the district court weighed those factors appropriately and neither factor weighs so heavily in favor of certification as to foreclose an EJJ designation.

The district court had an opportunity to observe T.H.W. and to question him under oath. The court had the option of EJJ designation, which provides T.H.W. with both juvenile treatment and the consequence of adult prison if he fails in treatment. Given the district court's "considerable latitude" in deciding whether to order certification, and given the option of EJJ with a stayed adult sentence hanging over the juvenile's head, the district court did not abuse its discretion in denying the motion for adult certification.

T.H.W.'s counsel seeks an award of attorney fees and costs incurred in responding to this appeal. See Minn. R. Juv. P. 21.04, subd. 2 (child is entitled to reasonable attorney fees and costs incurred in state's appeal). We award T.H.W. $2,000 as reasonable attorney fees given the nature of the case and this court's general limitations on such awards, and $12.10 in costs.

Affirmed; motion granted.

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

[**] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.