STATE OF MINNESOTA

IN COURT OF APPEALS

A06-981

In the Matter of the Welfare of:

G.T.A.

Filed January 2, 2007

Affirmed; motion granted

Ross, Judge

Hennepin County District Court

File No. 27-JV-06-1840

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant G.T.A.)

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D O P I N I O N

ROSS, Judge

On appeal from an order certifying G.T.A. for adult prosecution, G.T.A. argues that the district court erred by finding probable cause that he committed first-degree aggravated robbery and assault for the benefit of a gang and by granting the state’s adult-certification motion. G.T.A. further challenges the constitutionality of the presumptive-certification statute. Because probable cause supports all of the charged offenses, the record supports the juvenile court’s decision to certify G.T.A., and the presumptive-certification statute is constitutional, we affirm.

FACTS

Seventeen-year-old G.T.A. challenges a juvenile court’s order certifying his case for adult prosecution. In February 2006, the state filed a delinquency petition in juvenile court alleging that G.T.A. committed first-degree aggravated robbery, second-degree assault, and, based on the assault, a crime for the benefit of a gang. The state later moved to certify G.T.A. for prosecution as an adult. For purposes of certification, courts presume that factual allegations in a delinquency petition are true. In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).

The state’s petition alleged that during a late morning in January 2006, G.T.A. and R.O.R.C., another juvenile, parked a vehicle near Edison High School. They began moving toward E.P.R., who was walking near the school with E.G., his girlfriend. E.P.R. and E.G. began walking faster when they saw the two boys. R.O.R.C. ran in front of E.P.R. and punched him in the face. G.T.A. stood behind E.P.R. and stabbed him twice in his back and once in his buttocks. E.P.R.’s jacket prevented the knife from cutting his back, but he sustained a wound approximately four inches deep and one-and-one-half inches wide to his buttocks. E.P.R.’s cellular telephone fell to the ground during the assault and, as E.G. approached to pick it up, R.O.R.C. pushed her away and took the phone. G.T.A. and R.O.R.C. drove away from the high school, but police officers stopped their van after a short chase soon after the assault. Officers recovered from the vehicle a blood-stained knife with a nine-inch blade.

G.T.A. admitted that he stabbed E.P.R. R.O.R.C. told officers that he and G.T.A. were driving by the school when they saw E.P.R. flashing gang signs. G.T.A. stated that he recognized E.P.R. as someone he had fought with about one year earlier while G.T.A. was a student at the school. G.T.A. and R.O.R.C. both admitted to being affiliated with the Sureños 13 gang. E.G. stated that as the two boys were running away from the school after the assault, they shouted, “F--k the VLs!” and “We are going to get you!” several times. Police understood “VLs” to refer to the Vatos Locos, a rival gang. Although E.P.R. denied being a member of the Vatos Locos, he admitted that he had been friends with some members previously.

Following the petition, the state moved to certify G.T.A. for prosecution as an adult under Minnesota Statutes section 260B.125, subdivision 3 (2004), which provides for presumptive adult certification when the accused juvenile is sixteen or seventeen years old and is charged with an offense for which imprisonment is the presumptive sentence. G.T.A. challenged whether probable cause existed to support the robbery and crime-for-the-benefit-of-a-gang charges. The district court found that probable cause existed for all of the charges. After ordering and reviewing the results of a certification study and a psychological evaluation and holding a hearing, the court granted the state’s adult-certification motion. G.T.A. argues on appeal that probable cause does not support two of the three charges, that the record does not support adult certification, and that the statute permitting presumptive certification is unconstitutional.

D E C I S I O N

We first address G.T.A.’s assertion that probable cause does not support two of the charges. The district court may not order certification for trial as an adult unless it finds probable cause to believe the juvenile committed the offenses alleged in the delinquency petition. Minn. Stat. § 260B.125, subd. 2(5) (2004). The court may consider the facts set forth in the charging document as well as any police reports attached to the document to determine whether probable cause exists. Minn. R. Juv. Delinq. P. 6.05, subd. 1; see also Minn. R. Crim. P. 11.03 (stating that probable-cause determination “shall be based upon the entire record including reliable hearsay in whole or in part”). A court should deny a motion to dismiss for lack of probable cause if it is satisfied that the facts in the record, if established at trial, would preclude granting a motion for a directed verdict of acquittal. State v. Florence, 306 Minn. 442, 459, 239 N.W.2d 892, 903 (1976), modified on other grounds, State v. Rud, 359 N.W.2d 573, 579 (Minn. 1984). G.T.A. challenges the district court’s determination that probable cause supports the petition’s allegations that he committed first-degree aggravated robbery and a crime for the benefit of a gang. We will uphold a determination of probable cause unless the district court’s findings are clearly erroneous. In re Welfare of A.C.N., 583 N.W.2d 303, 305 (Minn. App. 1998). We hold that the record supports the findings of probable cause.

First-degree aggravated robbery is a robbery committed by a person armed with a dangerous weapon. Minn. Stat. § 609.245, subd. 1 (2004). A robbery requires the taking of personal property either from another person or in the presence of another person while using or threatening imminent force to overcome the person’s resistance. Id. § 609.24 (2004). G.T.A. argues that R.O.R.C. took E.P.R.’s cell phone only as an afterthought when the assault was completed and E.P.R. had dropped it. Although G.T.A.’s theory may be proved at trial, alternative interpretations of the facts might also prevail. The record leaves factual questions regarding the amount of time that elapsed between the alleged stabbing and the taking of the phone and where E.P.R. was located in relation to the phone. The documentary record leaves unanswered when the assault concluded. Probable cause is not an onerous standard. And the circumstances alleged here support the district court’s decision that probable cause supports the state’s allegation that, while armed with a dangerous weapon, G.T.A. or his accomplice took personal property either from E.P.R. or in his presence while using or threatening to use imminent force to overcome his resistance or compel acquiescence.

G.T.A. next challenges whether probable cause supports the state’s allegation that he assaulted E.P.R. for the benefit of a gang. A crime committed for the benefit of a gang is a substantive offense. State v. Chuon, 596 N.W.2d 267, 270 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). A person is guilty of the offense when he commits a crime “for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members.” Minn. Stat. § 609.229, subd. 2 (2004).

The record supports the district court’s finding of probable cause on this charge. Asked why he punched E.P.R., R.O.R.C. allegedly told officers that E.P.R. flashed gang signs at them as they drove by the school. E.P.R. acknowledged that he used to associate with members of the Vatos Locos gang, and G.T.A. admitted that he was a member of the Sureños 13 gang. E.G. reported that, after the stabbing, G.T.A. and R.O.R.C. shouted disparaging references to the Vatos Locos. Police officers also recovered from the stopped van a videotape showing R.O.R.C. allegedly flashing gang signs at the camera. G.T.A. admitted that he was operating the video camera, and the date-and-time stamp on the videotape indicates that it was recorded only minutes before they arrived at the high school and allegedly attacked E.P.R. Viewed together, these facts support the district court’s determination of probable cause on the charge of committing a crime for the benefit of a gang.

G.T.A. argues that E.G.’s report of the disparaging gang-related statements is unreliable because she is the victim’s girlfriend and she was the only person who claimed to hear the remarks. We decline to weigh the witness’s credibility, but we note that the failure of corroboration does not render the claim implausible; of the four people present at the time of the assault, two allegedly committed the assault, and one, E.P.R., had collapsed from a stab wound when E.G. asserts she heard yelling. The district court appropriately relied on the information before it to decide probable cause, and we determine that the statement adds to the other indicia of gang-relatedness for that purpose. This court has upheld a conviction of committing a crime for the benefit of a gang when the defendant spoke about his gang before shooting a person and exclaimed “Villa Lobos for life” immediately after shooting him. State v. Carillo, 623 N.W.2d 922, 929-30 (Minn. App. 2001), review denied (Minn. June 19, 2001). The petition and police reports assert a similar order of events in this case: E.P.R. flashed gang signs at G.T.A. and R.O.R.C., they parked their vehicle and approached E.P.R., they assaulted E.P.R., and as they left, they made explicit, disparaging reference to a rival gang. Although G.T.A. disputes the sufficiency of the evidence to demonstrate that he committed the assault for the benefit of a gang, the showing required for probable cause is significantly lower than that which is required for a conviction.

We turn to G.T.A.’s challenge to adult certification. When the state alleges that a juvenile who is at least 14 years old committed an offense that would be a felony if committed by an adult, the juvenile court may certify the case to the district court to address the allegations according to procedures controlling adult criminal violations. Minn. Stat. § 260B.125, subd. 1 (2004). Adult certification is presumed if the child is 16 or 17 years old at the time of the alleged offense and the presumptive sentence for the offense is imprisonment. Id., subd. 3 (2004); see also In re Welfare of L.M., 719 N.W.2d 708, 710 (Minn. App. 2006) (noting that state bears burden of showing juvenile is 16 or 17 years old and alleged offense carries adult sentence). The juvenile may rebut this presumption with clear and convincing evidence that keeping the proceeding in juvenile court serves public safety. Minn. Stat. § 260B.125, subd. 3. Because the district court has considerable discretion to determine whether adult certification is appropriate, we will reverse its decision only if the court abused its discretion by resting its decision on clearly erroneous findings. In re Welfare of U.S., 612 N.W.2d 192, 194-95 (Minn. App. 2000).

G.T.A. raises two challenges to the application of the presumptive-certification statute in this case. First, he argues that this case does not satisfy the statutory requirements for presumptive certification. Second, he argues that he rebutted the presumption of certification and that public safety is best served by using extended-juvenile jurisdiction rather than adult certification. The record does not support either claim.

G.T.A.’s argument that his case is inappropriate for presumptive certification rests on his assertion that two of the charges lack probable cause. As we have stated, probable cause supports the aggravated-robbery and crime-for-the-benefit-of-a-gang charges. G.T.A. was 16 years old when he committed the alleged offenses. The presumptive sentence for first-degree aggravated robbery is 48 months’ imprisonment. Minn. Sent. Guidelines IV. The statutory requirements for presumptive certification are therefore satisfied.

We also are not convinced by G.T.A.’s argument that the district court wrongly determined that he did not rebut the certification presumption with clear and convincing evidence that retaining the proceeding in juvenile court serves public safety. To determine whether public safety is served by adult certification, the district court must consider six factors: (1) the seriousness of the alleged offense as it relates to community protection; (2) the child’s culpability in committing the offense; (3) the child’s prior record of delinquency; (4) the child’s programming history; (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. § 260B.125, subd. 4 (2004). The court must give greater weight to the factors addressing the seriousness of the alleged offense and the child’s prior delinquency record. Id.

The record supports the district court’s finding that G.T.A. did not rebut the presumption that adult certification is appropriate in his case. The first factor addresses the seriousness of the offense. G.T.A. and R.O.R.C. allegedly committed an unprovoked attack on school grounds during the daytime. E.P.R. had trouble walking and sitting for several weeks because of his injury. The record suggests that only the protection of his coat saved him from a more serious injury or death. School officials reported that the offense had a significant impact on the school because students feared exacerbated gang tension and more violence. The record supports the district court’s conclusion that this offense was “extremely serious.”

The record also supports the court’s finding on the second factor that G.T.A. “appears completely culpable.” He allegedly fully participated in attacking E.P.R. He possessed the knife and he stabbed E.P.R. He admitted during an interview for the certification study that he is aggressive, likes to fight, and carries a knife for reasons other than self-defense. During his psychological evaluation, G.T.A. described E.P.R. as “my enemy,” and noted that although what he did was wrong, “[E.P.R.] deserved it.”

The third consideration is G.T.A.’s prior record of delinquency. In addressing this factor, the court may consider nonadjudicated behavior. In re Welfare of D.T.N., 508 N.W.2d 790, 793 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994). The district court found that G.T.A. has “a small prior record of [j]uvenile [c]ourt delinquency.” The court noted that the present case marked G.T.A.’s first violent offense, but he had two felony property-damage cases pending based on gang-related graffiti. He additionally had pending charges for committing misdemeanor property damage and giving false information to police. G.T.A. has had multiple police contacts, several warrants for failing to appear in court, and behavioral problems during prior stays in the juvenile detention center. G.T.A. has several gang tattoos and police officers and other community members familiar with G.T.A. reported that he has become more heavily involved in gang activity during the past few years. A member of the gang strike force reported that G.T.A. is a gang recruiter and is known as a “hard-core” and dangerous person.

On the fourth public-safety factor, the court found that G.T.A. has a short programming history and that he failed to use public school resources. For his past behavior, the juvenile court had ordered G.T.A. to complete six days of sentence-to-serve; he completed only three days. The certification study noted G.T.A.’s lack of participation in structured settings. He had not been enrolled in school for over one year and was frequently truant and noncompliant with a school-support system when he was enrolled.

In addressing the adequacy of punishment and programming available in the juvenile justice system, the district court noted that an extended-juvenile jurisdiction designation would provide the juvenile court with approximately three and one-half years of jurisdiction over G.T.A. Although G.T.A. presented documentation that Glen Mills Schools would accept him, the court found the placement neither suitable nor appropriate. The evaluating psychologist noted that G.T.A. would likely comply with programming, but the probation officer who submitted the certification study observed that G.T.A. appeared to have “little investment in or orientation towards changing his delinquent behavior.”

Overall, the record supports the juvenile court’s determination that G.T.A. did not rebut the certification presumption by clear and convincing evidence. Both the psychological evaluation and the certification study recommended adult certification. G.T.A. focuses much of his challenge to the court’s certification decision on statements in the evaluation and certification study. But the district court made independent findings that are supported by the record. G.T.A. also complains that the court emphasized the seriousness of the offense, but the statutory provisions addressing certification expressly direct the court to give greater weight to this factor. Minn. Stat. § 260B.125, subd. 4. G.T.A. has also not presented a compelling argument that the court relied on unreliable hearsay to support its findings. We therefore affirm the district court’s determination that G.T.A. failed to rebut the presumption of adult certification.

III

G.T.A.’s final challenge regards the constitutionality of the adult-certification scheme. We presume that Minnesota statutes are constitutional. State v. Barker, 705 N.W.2d 768, 771 (Minn. 2005). We will exercise our power to declare a statute unconstitutional with extreme caution and only when absolutely necessary. Walker v. Zuehlke, 642 N.W.2d 745, 750 (Minn. 2002); Reed v. Bjornson, 191 Minn. 254, 257, 253 N.W. 102, 104 (1934). A determination concerning whether a statute is constitutional is reviewed de novo. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn. 2000).

G.T.A. asserts that Minnesota Statutes section 260B.125, subdivision 3, violates the equal protection clauses of the state and federal constitutions. An equal-protection challenge under the Minnesota constitution is evaluated under a rational-basis test. State v. Russell, 477 N.W.2d 886, 888 (Minn. 1991); In re Welfare of L.J.S., 539 N.W.2d 408, 412 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996). For a statutory classification to have a rational basis, the statute must make a genuine and substantial distinction between persons included in and persons excluded from the class, the classification must be relevant to the law’s purpose, and the purpose of the classification must be legitimate. L.J.S., 539 N.W.2d at 412.

G.T.A. argues that the presumptive-certification statute is unconstitutional because it treats older juveniles differently than younger juveniles and empirical studies have discredited any claimed basis for making this distinction. We have already held that the presumptive-certification statute does not violate principles of equal protection. Id. at 412-13 (evaluating presumptive-certification statute when it was codified at Minn. Stat. § 260B.125, subd. 2a (1994)). In L.J.S., we held that the offender-age and offense criteria that the statute uses to classify juveniles are relevant to the purpose of the statute, which is to protect public safety. Id. at 412. We noted that age is highly relevant to whether retaining juvenile jurisdiction serves public safety because an older age curtails the time available for juvenile treatment. Id. at 412-13. Offenses with a presumptive sentence of incarceration are related to the statute’s purpose because these offenses are generally crimes against persons, which present a greater threat to public safety. Id. at 413.

G.T.A. asserts that this case differs from L.J.S. because, unlike the juvenile in that case, G.T.A. contends that he is in a suspect class. But G.T.A. fails to indicate a suspect class. Age-based classifications are not suspect. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14, 96 S. Ct. 2562, 2567 (1976). G.T.A. also attempts to distinguish L.J.S. by challenging the assumption that age is relevant to public safety. He relies heavily on the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005). In the appendix to his appellate brief, G.T.A. has also submitted copies of amicus briefs filed in Roper by the American Psychological Association and the American Medical Association. As a threshold matter, we grant the state’s motion to strike these documents. Although the court may consider publicly available legal resources on appeal, the copied material is written in an advocacy context and is more akin to additional legal argument or evidence. See Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co., 480 N.W.2d 368, 376-77 (Minn. App. 1992) (noting that submission of written materials on appeal is permissible if materials are legal resources and not evidence), review denied (Minn. Mar. 26, 1992). To accept G.T.A.’s appendix materials would also suggest that a party may circumvent the procedural steps required for submitting an amicus brief to this court. See Minn. R. Civ. App. P. 129.01 (requiring court’s permission to file amicus brief); see also id. 130.01, subd. 1 (setting forth proper contents of appendix to appellant’s brief).

We also find unpersuasive G.T.A.’s argument that Roper undermines our holding in L.J.S. In Roper, the Supreme Court held that executing offenders under eighteen years old violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Roper, 543 U.S. at 568, 125 S. Ct. at 1194. In reaching its decision, the court noted three primary differences between juveniles and adults: they lack maturity and have an undeveloped sense of responsibility; they are more vulnerable and susceptible to negative influences and outside pressures; and their character is not well formed. Id. at 569-70, 125 S. Ct. at 1195. Because of these differences, the Court reasoned, juveniles have diminished culpability and “it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults.” Id. at 571, 125 S. Ct. at 1196. The Roper Court did not imply that its holding reached beyond the death-penalty context.

G.T.A.’s reliance on Roper and social science literature as applied to Minnesota’s presumptive-certification statute is unconvincing. Most notably, although adult certification is a significant procedural stage, Roper addressed the imposition of death and the Court focused exclusively on juveniles in that context. The Court held that, “[w]hen a juvenile offender commits a heinous crime, the [s]tate can exact forfeiture of some of the most basic liberties, but the [s]tate cannot extinguish his life and his potential to attain a mature understanding of his own humanity.” Id. at 573-74, 125 S. Ct. at 1197. The Court did not close the door on all age-based distinctions.

It is true that the Court also recognized that differences between juveniles and adults argue against justifying the execution of juveniles, based on the penological reasons for the death penalty, retribution and general deterrence. Id. at 571, 125 S. Ct. at 1196. But G.T.A. focuses exclusively on prediction of future offending in an individual case, which speaks to specific deterrence and incapacitation, neither of which the Court addressed. G.T.A.’s argument that the purpose of the presumptive-certification statute is premised on the assumption that a fact-finder can predict a juvenile’s future dangerousness is unpersuasive. The task force that recommended changing Minnesota’s juvenile-justice laws in 1994 stressed that the goal of reforming the state laws was to formulate a stronger response to serious and repeat juvenile crime and to establish a continuum of responses to juvenile crime based on seriousness of the offense, the age of the offender, and the threat posed to public safety. Minnesota Supreme Court Advisory Task Force on the Juvenile Justice System: Final Report, 20 Wm. Mitchell L. Rev. 595, 599 (1994). The express purpose of Minnesota’s laws governing juveniles and delinquent behavior is “to promote the public safety and reduce juvenile delinquency by maintaining the integrity of the substantive law prohibiting certain behavior and by developing individual responsibility for lawful behavior.” Minn. Stat. § 260B.001, subd. 2 (2004). Imposing a potentially more serious penalty on older offenders who commit more serious offenses fits this purpose. The structure of the presumptive-certification procedures creates only a rebuttable presumption, which allows a juvenile to present the court with evidence that juvenile-court jurisdiction will serve public safety. Following G.T.A.’s rationale, the state could never use public safety to justify dispositional or procedural action in the criminal justice system because an individual’s risk of recidivism is unpredictable. G.T.A. has not demonstrated that the presumptive-certification statute is unconstitutional.

G.T.A. further argues that, under the federal constitution, the court should apply a strict-scrutiny standard of review to section 260B.125, subdivision 3, because deprivation of liberty is a fundamental right. But a presumptive-certification proceeding does not result in denial of a liberty interest; the statutory presumption “merely determines which court will try the case and evaluate the elements of the offense.” L.J.S., 539 N.W.2d at 413.

Affirmed; motion granted.