This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1489

 

In the Matter of the Welfare of:

A.C.L.

 

Filed February 13, 2007

Affirmed; motion denied

Dietzen, Judge

 

Hennepin County District Court

File No. 27-JV-06-6676

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for appellant State of Minnesota)

 

Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent A.C.L.)

 

            Considered and decided by Dietzen, Presiding Judge; Worke, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            In this extended jurisdiction juvenile (EJJ) proceeding, appellant state challenges the district court order denying a motion for presumptive certification, arguing that the district court erred in its findings on the public safety factors and abused its discretion by denying the motion to certify.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

            In May 2006, Minneapolis police officers were dispatched to the Hennepin County Medical Center (HCMC) after a male, identified as C.D.M., was admitted to the hospital and died from a gunshot wound.  Upon arrival, police officers interviewed J.P.K., who drove C.D.M. to the hospital, and learned that two weeks earlier, C.D.M. and a friend were verbally harassed as they walked past a group of suspected Sureno 13 street-gang members gathered outside a residence in Minneapolis.  As a result, C.D.M. decided to spray-paint derogatory graffiti on this house.

            A second witness, J.L.S., told police officers that on the morning in question, he and C.D.M. approached the house while two other witnesses, J.P.K. and M.J.D., waited in a nearby car.  As C.D.M. spray-painted an exterior wall of the house, J.L.S. saw a young male, later identified as respondent A.C.L., enter the front porch from inside the house yelling at J.L.S. and C.D.M.  While fleeing to the waiting car, J.L.S. heard several gunshots, but did not realize that C.D.M. was hit until they entered the car.

            Police officers found fresh graffiti spray-painted on the house and a trail of blood on the sidewalk located about a block away.  A.C.L. was later apprehended in a minivan located near the house in question.  One of the occupants of the minivan informed the police that A.C.L. had told him that he heard people spray-painting his house, that he went outside and saw them running away, and that he told them to come back.  When they laughed at him, he “fired.”

            During a recorded post-Miranda interview, A.C.L. stated that he saw two men spray-painting his house, that he retrieved his .32 caliber pistol, exited his house, and fired the gun at the men as they ran away.  A.C.L. stated that he threw the pistol in a trash dumpster following the shooting.

            A.C.L. was charged with one count of second-degree murder as to victim C.D.M., and one count of second-degree assault as to victim J.L.S.  The state filed a presumptive certification motion pursuant to Minn. Stat. § 260B.125, and the district court ordered a certification study and psychological evaluation.  Both the certification report by investigating probation officer, Kathleen Linden, and the psychological evaluation by senior clinical psychologist, Dr. Rebecca Reed, recommended that A.C.L. be certified as an adult. 

            The district court held a contested certification hearing with Dr. Reed and Ms. Linden testifying.  The court also received reports of the probation officer and court psychologist, and a transcription of A.C.L.’s post-Miranda interview.  In an order filed in July 2006, the district court found that A.C.L. had overcome the presumption of adult certification by clear and convincing evidence, that public safety would be best served by retaining A.C.L. in the juvenile system, and, therefore, ordered that the proceeding be designated EJJ.

            Following the district court’s decision, A.C.L. attempted to plead guilty, but the state announced its intention to appeal the EJJ designation, which stayed the proceedings.  This appeal followed.

D E C I S I O N

I.

            The state argues that the district court erred in concluding that A.C.L. had overcome the presumption of adult certification by clear and convincing evidence and ordering that the proceedings be designated EJJ.  A district court’s certification decisions are entitled to “considerable latitude.”  In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).  We will reverse a certification decision only if we find that the district court abused its discretion.  In re Welfare of L.M., 719 N.W.2d 708, 710 (Minn. App. 2006).  Clearly erroneous findings by the district court constitute abuse of discretion.  In re Welfare of H.S.H., 609 N.W.2d 259, 261 (Minn. App. 2000).

            Because A.C.L. was a juvenile between 16 and 17 years of age at the time of the offense, the offense carries a presumptive prison sentence under the Minnesota Sentencing Guidelines, and the offense involved the use of a firearm, certification is presumed.  Minn. Stat. § 260B.125, subd. 3 (2006); Minn. R. Juv. Delinq. P. 18.06, subd. 1.  Consequently, the burden shifted to A.C.L. to rebut the presumption of certification by “demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety.”  Minn. Stat. § 260B.125, subd. 3.

            The district court must consider six factors in determining whether retaining the matter as EJJ would serve public safety.  Minn. Stat. § 260B.125, subd. 4 (2006).  In considering these factors, the court must give greater weight to the seriousness of the alleged offense and the child’s prior record of delinquency than to the other factors.  Id.  After evaluating the factors, “[i]f the court finds that the child has not rebutted the presumption by clear and convincing evidence, the court shall certify the proceeding.” Minn. Stat. § 260B.125, subd. 3(2).  For certification purposes, a juvenile is presumed to have committed the alleged offense.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).  We turn then to a review of the factors.          

            A.        Seriousness of the Offense

            The state argues that the district court erred in finding that the seriousness of the offense was mitigated by A.C.L.’s fear and belief that he needed to protect himself and his home.  Specifically, the state argues that the statute does not permit mitigation of the seriousness of the offense.  The statute requires that the district court consider “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.”  Minn. Stat. § 260B.125, subd. 4(1).

            Under the statute, seriousness focuses on community protection, including the existence of aggravating factors, the use of the firearm, and the impact on any victim.  Thus, this factor does not explicitly provide for mitigation.  But the word “including” signals that the district court need not limit itself to the words listed under the “seriousness” factor.  See Minn. Stat. § 645.08(1) (2006) (mandating that courts construe general words and phrases according to their common usage). 

            Here, A.C.L. fired shots at two men who were fleeing his home after vandalizing it and fatally wounded one of them.  The district court found that although the offense was “serious because the offense resulted in the death of the victim, the seriousness is mitigated by the circumstances under which the incident occurred” and that certification was not favored by this factor.  We disagree. 

Few offenses are as serious as taking the life of another.  And public safety is clearly compromised where shots are fired on a residential street in retaliation for property damage.  The district court found that the seriousness is mitigated by A.C.L.’s fear and belief that he needed to protect himself and his home.  But even if the claims of “imperfect self-defense” arguably lessen the seriousness of the offense, the offense is still serious enough to favor adult certification.  Any mitigation that results from the circumstances is offset by the victim impact, the use of a firearm, and the grave danger to public safety.  This factor favors certification.    

B.        Culpability

The state argues that the district court erred in its findings regarding culpability.  The statute provides that the district court shall consider 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.”  Minn. Stat. § 260B.125, subd. 4(2). 

The district court found that A.C.L. acted alone, but that the crime’s unintentional nature “makes [A.C.L.] less culpable than if he had intended to kill the victim.”  The district court also found that his “youth and impulsivity,” the “imperfect defense of self and home,” and A.C.L.’s “extreme remorse,” lessen his culpability.  The statute directs the court to consider the child’s culpability, “including” various factors.  Minn. Stat. § 260B.125, subd. 4(2).  As stated above, the word “including” signals that the court need not consider only those factors that are listed.  Thus, the district court is not limited to considering only the child’s planning and participation and the factors listed in the sentencing guidelines.

The state argues that the district court erred in applying the “unintended nature of the killing” to culpability rather than to the seriousness of the offense, and that the degree of A.C.L.’s intent was already considered by charging A.C.L. with unintentional second degree murder and by its severity level under the guidelines.  We do not read the culpability factors as narrowly as the state.  The district court has broad discretion to consider the degree of A.C.L.’s intent in considering culpability.  And the state has identified no case law that limits consideration of intent to the “seriousness” of the crime. 

The state also argues that the district court erred by considering A.C.L.’s “youth,” “impulsivity,” and “lack of mature judgment.”  The state relies on State v. Mitchell, 577 N.W.2d 481, 492 (Minn. 1998), which held that if a juvenile is certified as an adult, his due process rights are not violated by not considering his youth as a mitigating factor for sentencing purposes.  But Mitchell, although not requiring consideration of the offender’s youth, does not prevent A.C.L.’s youth from being considered when assessing the juvenile’s culpability for purposes of adult certification.  Here, the district court, relying in part on Dr. Reed’s assessment that A.C.L.’s judgment was typical of an adolescent, concluded that A.C.L.’s actions were less culpable. 

The state argues that the district court’s findings of fact supporting an “imperfect self-defense” are clearly erroneous.  The district court found that this “imperfect defense of self and home” lessened A.C.L.’s culpability.  Specifically, the state argues that the court’s finding that A.C.L. was fearful that he was outnumbered four to one, i.e., two men in the nearby car and two men spray-painting his house, is clearly erroneous.  The state argues that A.C.L. shot out of anger in response to the spray-painters laughing at him.  But in his statement to the police, A.C.L. said that he “got scared” and that he “didn’t know what to do.”  And “[i]f there is reasonable evidence to support the district court’s findings, we will not disturb them.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  Thus, the district court’s finding that A.C.L. “believed that he needed to protect himself” is not clearly erroneous.

The state further argues that the evidence does not support the district court’s finding of “extreme remorse.”  The state argues there is no evidence in A.C.L.’s “actual statements” that A.C.L. was remorseful.  But the officer’s statements in the interrogation indicate that A.C.L. was remorseful and visibly upset.  On this record, the district court’s finding that culpability favored EJJ designation is not clearly erroneous.

C.        Prior Record

The state argues that the district court erred in minimizing the prior record of A.C.L.  The statute requires that the district court consider “the child’s prior record of delinquency.”  Minn. Stat. § 260B.125, subd. 4(3).  Along with seriousness of the offense, this factor is to be considered more heavily than the other four factors.  Minn. Stat. § 260B.125.  The district court is permitted to consider unadjudicated or pending charges.  In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (stating “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”), review denied (Minn. Aug. 20, 1996).[1]  The court may also consider the gang-related nature of offenses.  St. Louis County v. S.D.S., 610 N.W.2d 644, 649 (Minn. App. 2000) (reversing denial of certification where the juvenile had four prior gang-related misdemeanors).

Here, the district court found that A.C.L. had one prior adjudication in April 2006 for gun possession, and was placed on probation one month before the current offense.  The court found that A.C.L. had no police contact prior to January 2005, but was charged with two offenses in February 2005 that were later dismissed, and had contact with police for three other incidents in 2005 which were not charged.  The court further found that A.C.L.’s delinquency record is “minimal and of brief duration, making EJJ designation appropriate.”  The court was aware of A.C.L.’s gang involvement and concluded that public safety would be better served by the juvenile system, reasoning that juvenile options provide better gang deterrence than the adult correctional system.  The district court’s conclusion that this factor favored EJJ designation is not clearly erroneous.

D.        Programming History

The district court must consider the “the child’s programming history, including the child’s past willingness to participate meaningfully in available programming” in determining whether public safety would be served by adult certification or EJJ.  Minn. Stat. § 260B.125, subd. 4(4).  The state does not contest the finding that A.C.L. had no programming history, and that the “lack of programming history favors EJJ.”

E.        Punishment or Programming Available

The state argues that the district court erred in analyzing the adequacy of punishment by comparing a reduced adult sentence, based on its “speculation” as to what sentence A.C.L. “might” receive, to the punishment A.C.L. could receive as a juvenile.  The statute requires that the district court consider “the adequacy of the punishment or programming available in the juvenile justice system.”  Minn. Stat. § 260B.125, subd. 4(5).  In a recent case, the Minnesota Supreme Court concluded that:

The intent of the EJJ designation is to give juveniles one last chance at success in the juvenile system, with the threat of adult sanctions as an incentive not to reoffend. An initial juvenile disposition reinforced by the possibility of adult sanctions gives juveniles a certainty of punishment combined with an opportunity to be successful in the juvenile system. Thus, unlike certified juveniles, EJJs are given one last chance at rehabilitation in the juvenile system before being subjected to adult sanctions.

 

State v. Garcia, 683 N.W.2d 294, 300 (Minn. 2004).  See also In re Welfare of J.L.P., 709 N.W.2d 289, 293 (Minn. App. 2006) (upholding the constitutionality of the EJJ designation). 

Here, the district court did consider the punishment and programming available and concluded that it was adequate.  The court reasoned that if A.C.L. were designated EJJ, A.C.L. would be placed on probation until his 21st birthday (a period of just over three years).  The court would also “have the option of sending [A.C.L.] to a secure facility for a significant portion of that time,” and if A.C.L. re-offended, he would be subject to the stayed adult sentence.  We conclude that the court’s determination was not clearly erroneous. 

F.        Dispositional Options Available

The state argues that the district court misinterpreted the testimony of Ms. Linden regarding dispositional options, particularly with respect to offering programs to sever ties with gangs.  We disagree.  The statute requires that the district court consider the “dispositional options available for the child.”  Minn. Stat. § 260B.125, subd. 4(6).  The district court found three possible programs would be available if A.C.L. were adjudicated under EJJ, “[p]ublic safety would be best served by dissuading [A.C.L.] from further gang involvement,” and that juvenile programs provided a better method of deterring such gang involvement.    

Here, Ms. Linden testified that the juvenile program seeks to educate youth regarding gang involvement, and Dr. Reed testified that “nothing in the testing she conducted indicated that [A.C.L.] could not successfully complete a residential treatment program.”  The record supports the findings of the district court. 

            In summary, we conclude that the district court erred in not concluding that the seriousness of the offense favors adult certification and did not err in concluding that the other factors favor EJJ.  And though the seriousness of the offense is to be given more weight, it is not enough by itself to require certification.  In re Welfare of L.M., 719 N.W.2d at 712.  Therefore, we conclude that the district court did not abuse its discretion in determining that A.C.L. met his burden of proving that public safety would be served by retaining the matter as EJJ.

II.

The state seeks to strike material from A.C.L.’s appendix as not properly part of the district court record.  Here, the challenged material consists of a table of cases where “victim was aggressor” was cited as the reason supporting departure, compiled by a Minnesota Sentencing Guidelines Commission analyst from publicly available case statistics.  Because this is material we could refer to in our own research, is documentary, uncontroverted as to its authenticity, and not offered to support a reversal, we may consider it upon appeal.  See In re Estate of Turner, 391 N.W.2d 767, 771 (Minn. 1986) (denying motion to strike because court could refer to report in its own research); In re Risk Level Determination of C.M., 578 N.W.2d 391, 394 (Minn. App. 1998) (denying motion to strike because challenged material was documentary, uncontroverted, and not offered to support a reversal).  

Affirmed; motion denied.