This opinion will be unpublished and

may not be cited except as provided by

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




In the Matter of the Welfare of: B. P. F.

Filed July 27, 1999


Short, Judge

Washington County District Court

File No. 8214139Y

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

Doug Johnson, Washington County Attorney, Gregory J. Tavernier, Assistant County Attorney, Washington County Government Center, 14949 - 62nd Street North, P.O. Box 6, Stillwater, MN 55082 (for appellant)

Jeffry G. Olson, 106 South Main, P.O. Box 18, Stillwater, MN 55082 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Short, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Despite a presumption that he be certified as an adult, the trial court declined to certify B.P.F. as an adult on charges of aggravated robbery and designated him an extended jurisdiction juvenile pursuant to Minn. Stat. § 260.126 (1998). On appeal, the state argues the trial court abused its discretion by refusing to listen to an audiotape made by a codefendant and failing to properly consider certification factors. We affirm.


In juvenile certification proceedings, a juvenile court has considerable discretion in determining whether adult certification is appropriate, and its decision will not be reversed absent an abuse of that discretion. In re Welfare of I.Q.S., 309 Minn. 78, 86-87, 244 N.W.2d 30, 38 (1976); In re Welfare of J.S.J., 550 N.W.2d 290, 292 (Minn. App. 1996). During certification proceedings, the trial court has broad discretion in determining whether to receive evidence and we will reverse only for an abuse of that discretion. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).

The state argues the trial court abused its discretion by refusing to listen to an audiotaped statement by one of B.P.F.'s co-defendants that would allegedly demonstrate B.P.F.'s culpability in the crime. See Minn. R. Juv. P. 18.04, subd. 4(B) (stating court may receive any relevant information including reliable hearsay during certification proceedings). But the record shows: (1) the audiotape was made by a co-defendant who was unavailable for cross-examination; (2) the tape was exculpatory for the co-defendant and inculpatory of B.P.F.; (3) the trial court permitted the tape to be played, outside the trial court's hearing, for the juvenile probation officer who conducted the certification study on B.P.F.; (4) the probation officer then testified the tape did not change her recommendation against certification; and (5) the trial court excluded the tape. Given these facts, the trial court did not abuse its discretion by refusing to listen to the audiotaped statement of a co-defendant who was unavailable for cross-examination. See Lee v. Illinois, 476 U.S. 530, 542-43, 106 S. Ct. 2056, 2063 (1986) (stating statements that incriminate defendant, made by accomplices during police questioning, are considered presumptively unreliable); State v. Gruber, 264 N.W.2d 812, 817 (Minn. 1978) (noting co-defendant's unsworn statements that inculpate defendant are not reliable hearsay when codefendant is not subject to cross-examination); see also Minn. R. Evid. 803(24) (requiring hearsay to be trustworthy).

The state also argues the trial court did not properly consider the mandatory statutory factors. See Minn. Stat. § 260.125, subd. 2b (1998) (defining statutory factors for mandatory consideration). The record demonstrates: (1) B.P.F. was culpable for planning and executing the robbery; (2) the armed robbery was a serious offense because the weapon used by B.P.F. could inflict great bodily harm or death and the victim was traumatized by the incident; (3) B.P.F.'s verifiable prior delinquency record consisted of minor consumption, speeding, failure to yield the right of way, and a theft charge; (4) B.P.F. had no programming history; (5) a probation officer and mental health professional recommended programming for B.P.F. through the juvenile justice system; and (6) the probation officer and mental health professional recommended several juvenile dispositional options that would serve as adequate programming for B.P.F. See In re Welfare of K.M., 544 N.W.2d 781, 784 (Minn. App. 1996) (stating for purposes of reference hearings to determine if juvenile should be certified as adult, charges against juvenile are presumed to be true). Thus, the trial court properly considered the evidence, reviewed and weighed the statutory factors, and made sufficient findings of fact to support its conclusion that B.P.F.'s lack of prior record and programming history outweighed his culpability and the seriousness of the offense. See Minn. Stat. § 260.125, subds. 2b (defining statutory factors and requiring greater weight for seriousness of offense and prior record), 5 (1998) (stating trial court must make written findings of fact on the statutory factors); I.Q.S., 309 Minn. at 89-93, 244 N.W.2d at 39-41 (concluding record and findings of fact supported certification decisions). Under these circumstances, the trial court did not abuse its discretion in refusing to certify B.P.F. and designating him an extended jurisdiction juvenile.