This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-1776

In the Matter of the Welfare

of: S.R.

Filed May 11, 1999

Affirmed

Willis, Judge

Stearns County District Court

File No. J89850605

John M. Stuart, State Public Defender, Charlann Winking, Assistant State Public Defender, 2829 University Ave. SE, Suite 600, Minneapolis, MN 55414 (for appellant S.R.)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger S. Van Heel, Stearns County Attorney, Janis L. Hovda, Assistant County Attorney, Administration Center, Rm. 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant S.R. challenges the district court's order certifying him for prosecution as an adult. We affirm.

FACTS

In December 1996, appellant, who was then 17 years old, met E.S., then 14 years old, as she exited a school bus and took her to his apartment. After appellant gave her alcohol, E.S. lost consciousness. When she regained consciousness appellant returned her to the bus stop.

In May 1997, E.S. realized that she was pregnant. Some of appellant's friends told E.S. that appellant had sexual intercourse with her while she was unconscious at his apartment in December. After E.S.'s baby was born in August, a paternity test showed that there was a 99.99% probability that appellant was the child's father. Appellant was charged with third-degree criminal sexual conduct, in violation of Minn. Stat. 609.344, subd. 1(b) (1996) (defining crime as sexual penetration where complainant is at least 13 but less than 16 years old and actor is more that 24 months older than complainant). The state moved to certify appellant, who was then 19 years old, for prosecution as an adult, and the district court granted the motion. This appeal follows.

D E C I S I O N

Appellant argues the district court erred in certifying him for prosecution as an adult. A district court has considerable latitude in deciding whether to certify a delinquency proceeding 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 court will not reverse an adult-certification order unless the district court's "findings are clearly erroneous so as to constitute an abuse of discretion." Id. (citation omitted). A finding is clearly erroneous if the evidence as a whole does not reasonably support the finding. Olson v. Blue Cross & Blue Shield, 269 N.W.2d 697, 700 (Minn. 1978). For purposes of a certification hearing, the charges against the juvenile are presumed to be true. J.L.B., 435 N.W.2d at 598.

Where, as here, there is no presumption of certification, the district court may order certification if the state demonstrates by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve the public safety. Minn. Stat. 260.125, subd. 2(6)(ii) (1998). In determining whether certification serves the public safety, the district court must consider several 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;

(6) the dispositional options available for the child.

Minn. Stat. 260.125, subd. 2b (1998). The district court must give greater weight to the first and third factors than to the other factors. Id.

Appellant claims that the district court misapplied the law in basing the certification only on appellant's age and prior EJJ classification rather than holding the state to its burden of proof regarding public safety, citing In re Dahl, 278 N.W.2d 316, 320-21 (Minn. 1979) (providing court may not certify juvenile for adult prosecution based on age or seriousness of offense alone). But the record shows that the district court considered all six statutory factors, not just appellant's age and prior EJJ classification. See also In re M.E.P., 523 N.W.2d 913, 925 (Minn. App. 1994).

Appellant also argues that the district court should have required non-offense-related evidence of dangerousness. This court has concluded it is "questionable" whether the current certification statute requires non-offense-related evidence of dangerousness. In re Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997) (explaining that certification statute, which was amended in 1994, does not include non-offense-related evidence of dangerousness as factor to consider), review denied (Minn. Feb. 19, 1998). But even if non-offense-related evidence of dangerousness is required, the record contains such evidence. As the district court noted, appellant committed second-degree assault in 1995 when he stabbed a person in the chest with a knife.

Addressing the first statutory factor, appellant argues that the seriousness of the offense does not support certification, even though he acknowledges the offense is serious because it is a felony. The district court found that E.S. might have been unconscious at the time of sexual penetration and that the incident had a "profound impact" on E.S. because she became pregnant as a result. Because the record supports these findings, they are not clearly erroneous.

Appellant also argues the district court erred in considering that E.S. may have been unconscious at the time of the sexual penetration, claiming E.S.'s condition is not an element of the charged offense. The certification statute requires the court to consider the presence of aggravating factors recognized by the sentencing guidelines in assessing the seriousness of the offense. Minn. Stat. 260.125, subd. 2b(1). And a victim's particular vulnerability because of reduced capacity is an aggravating factor recognized by the sentencing guidelines. Minn. Sent. Guidelines cmt. II.D.103.2.b.(1). We conclude the district court did not err in considering E.S.'s particular vulnerability as an aggravating factor.

With respect to the requirement that the district court consider the juvenile's culpability in committing the offense, appellant admits he had sexual intercourse with E.S., but he argues the district court erred in finding he may have planned the incident, claiming the record contains no such evidence. See Minn. Stat. 260.125, subd. 2b(2) (requiring district court to consider culpability of juvenile, including his participation in planning offense). But the record would support a finding that appellant planned to meet E.S. at the bus stop, take her to his apartment, and give her alcohol. We therefore conclude that the district court's finding that appellant may have planned the incident is not clearly erroneous.

Appellant argues his prior delinquency record does not support certification, claiming his past crimes were "very minor, only property crimes." But, as the district court found, appellant's delinquency record includes second-degree assault, misdemeanor and gross misdemeanor theft, and probation violations. We therefore conclude that the district court's findings regarding appellant's prior record of delinquency are not clearly erroneous.

Appellant also argues that he "has had virtually no programming" in the juvenile justice system. The district court found that appellant "has already been afforded the opportunity for an [extended jurisdiction juvenile] designation and failed to comply with the conditions of his juvenile probation" and failed to attend counseling and programming. Because the record supports these findings, we conclude that they are not clearly erroneous.

Appellant admits that dispositional options are limited, but he argues the record contains no evidence to support the district court's finding that the punishment or programming available for him in the juvenile justice system is inadequate, claiming the record does not contain evidence that he needs treatment. But the psychologist who conducted the psychological evaluation of appellant concluded that sex-offender treatment "would likely be appropriate." Additionally, the probation agent who conducted the certification study is "aware of no residential programs in the State of Minnesota that would accept a 19 year old in need of sex offender treatment," with the possible exception of a program where appellant would be "in a far different life position than others in the program." Based on this evidence, we conclude that the district court's findings regarding the adequacy of the punishment or the programming available in the juvenile justice system are not clearly erroneous.

For the foregoing reasons, we conclude that the district court did not err in certifying appellant for prosecution as an adult.

Affirmed.