This opinion will be unpublished and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

A06-2395

 

In the Matter of the Welfare of: C.A.L.

 

Filed August 7, 2007

Affirmed;

Motion granted in part and denied in part

Stoneburner, Judge

 

Hennepin County District Court

File No. 27JV0612876

 

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

 

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

 

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the district court’s designation of the proceeding against him in juvenile court as an extended jurisdiction juvenile proceeding (EJJ)[1] in the context of denying the state’s motion to certify appellant as an adult.  Appellant argues that the district court (1) violated his right to due process by failing to order a new psychological evaluation and a new certification study to remedy the original evaluators’ exposure to irrelevant information; (2) erred by considering certification and EJJ designation simultaneously; (3) made clearly erroneous findings; and (4) committed reversible error by designating the proceedings EJJ.  We affirm.

FACTS

 

            At about 3 a.m. on August 28, 2006,Crystal police were dispatched to an apartment complex on a call of a burglary and sexual assault.  The tenant informed police that she heard her 19-year-old daughter, J.H., scream for help and saw a young black male run down the hall and exit the apartment.  The tenant then saw a young black male with a red hat below the apartment balcony walking along the garage to the west.  When he saw her watching, he ducked behind a van.  Police found C.A.L. walking by an apartment building in an adjacent area.  C.A.L. had a red hat sticking out of his pocket.  They arrested C.A.L. and told him that he was under suspicion of burglary and sexual assault.  The police brought C.A.L. to the apartment, where the tenant identified him as the person she saw crouching behind the van.  

            J.H. told police that she had been asleep in a bedroom when she woke up to find C.A.L. lying in bed next to her, with his hand in her pajama shorts, fondling her buttocks.  When she screamed for help, C.A.L. climbed on top of her and tried to put a pillow over her face.  When she continued to scream, he fled.  A kitchen knife, which did not belong to the household, was found on the floor by J.H.’s bed.  J.H.’s two-year-old daughter was in a crib in the room where the assault occurred.

            C.A.L. turned 14 years old several days prior to the incident.  C.A.L. has no prior involvement with juvenile court and no programming history.  C.A.L. and his grandparents, refugees from Liberia, came to the United States after living seven years in Ghana.  C.A.L.’s father, who is estranged from C.A.L.’s mother, came to the United States earlier and has remarried.  C.A.L.’s mother remains in Liberia.  Because C.A.L. did not get along with his stepmother, C.A.L. lived with his aunt in an apartment near J.H.’s apartment.  After this incident, C.A.L.’s aunt discovered that a kitchen knife of the same brand as the knife found in J.H.’s bedroom was missing from her kitchen.

            When C.A.L. was taken to the Crystal police station, an officer searched him and found a slip of paper in his pocket that contained J.H.’s name, address, and two credit-card numbers, which were found to be numbers from J.H.’s credit cards.  At first, C.A.L. denied being in the apartment, but he later admitted that he had entered the apartment by the balcony during the night and that he thought that J.H. lived alone.  He told police that he had been in the apartment for about 20 minutes surfing the Internet before he had contact with J.H.  He said he had found the piece of paper with the credit-card information next to the computer in the apartment living room.  C.A.L. denied writing the information on the piece of paper but admitted that he had taken the paper to buy clothes and shoes online.  He admitted that he went into J.H.’s bedroom and saw her and her baby, that he touched her to see if she was asleep, and that he held her down when she woke and began screaming.  He denied bringing a knife into the apartment. 

            A delinquency petition was filed, alleging that C.A.L. committed three counts of first-degree burglary and one count of fourth-degree criminal sexual conduct.  The prosecutor moved for non-presumptive certification[2] of C.A.L. as an adult.  The district court ordered a certification study, which was performed by juvenile probation officer Charles Upham, and a psychological evaluation, which was performed by psychologist Dr. Dawn Peuschold.  C.A.L. retained Dr. James Gilbertson to perform a psychological evaluation. 

            After the certification study and Dr. Peuschold’s psychological evaluation reports were complete, C.A.L. moved to redact from the reports all references to three offenses with which C.A.L. had not been charged.  The district court granted C.A.L.’s motion to redact all references to these incidents from the reports, but denied his motion to appoint a different probation officer and psychologist, who had not had access to the redacted information, to conduct a new certification study and psychological evaluation.

            Upham, Dr. Peuschold, and Dr. Gilbertson testified at the certification hearing.  None of the witnesses recommended certification as an adult, but Upham and Dr. Peuschold recommended EJJ designation.  Dr. Gilbertson testified that treatment and public safety needs could be met by retaining the matter in juvenile court.  The district court denied the state’s motion for certification, but designated the proceeding as EJJ.  This appeal follows.

D E C I S I O N

 

I.          Due process arguments

            C.A.L. argues that his due process right to fundamental fairness was violated by (1) the district court’s failure to ensure that the opinions of the court-appointed examiners were not biased by examination of improper materials and (2) the acceptance by the examiners and the district court as true allegations that were not included in the probable cause statement of the petition.  Allegations of constitutional violations are reviewed de novo on appeal.  In re Welfare of J.C.P., Jr., 716 N.W.2d 664, 666 (Minn. App. 2006).

            The rules of juvenile procedure provide that, in a certification proceeding, the district court “may order social, psychiatric, or psychological studies concerning the child . . . .”  Minn. R. Juv. Delinq. P. 18.04, subd. 1. 

If the person preparing the report includes a recommendation on the court’s actions: (a) the report “shall address each of the public safety considerations of Rule 18.06, subdivision 3; and (b) the report shall address all options of the trial court under Rule 18.07, namely; (i) certification; (ii) retention of jurisdiction for [EJJ] proceedings; and (iii) retention of juvenile court jurisdiction in non-presumptive certification cases.”

 

Minn. R. Juv. Delinq. P. 18.04, subd. 2.   

            a.         Police reports of other incidents

            Both Upham and Dr. Peuschold had access to police reports of three prior burglaries that occurred in the same apartment complex within one month of the incident described in the petition.  C.A.L was not mentioned in connection with two of the burglaries.  He was investigated but not charged for one of the burglaries.  C.A.L. argues that Upham’s and Dr. Peuschold’s recommendations were influenced by this irrelevant information.  The district court reasoned that the issue of the prior incidents could be addressed through cross-examination of these witnesses and by redacting any mention of the uncharged incidents in their reports. 

            At the certification hearing, Upham, whose assessment of C.A.L.’s risk to public safety was based primarily on Upham’s assessment of the seriousness of the offense, was asked specifically if his opinion on the seriousness of the offense would change in any way if he could not consider redacted reports.  He replied, “Absolutely not.”  Dr. Peuschold testified that she had formed her opinion on EJJ designation before she reviewed the police reports.  On the record before us, we conclude that denial of the motion for new examiners and new reports was not an abuse of discretion and did not make the proceedings fundamentally unfair such that C.A.L. was deprived of his due process rights.

            b.         Statements by C.A.L.’s  father

            Upham’s report contained statements by C.A.L’s father and C.A.L.’s school counselor.  The school counselor said that C.A.L. is a good student and athlete and is well-behaved at school.  C.A.L. had some truancy issues and two suspensions from school for insubordination and threatening another student, but no ongoing issues according to the counselor.  C.A.L.’s father, however, told Upham that once C.A.L. began to associate with peers from his junior-high football team, his behavior in the home and in the community was out of control.  Father told Upham that C.A.L had stolen money, credit cards, and his stepmother’s car.  He said that C.A.L. sneaked out of the house at night and would go “on run” for days at a time.  He had ordered Internet service without permission and possessed pornography.  After C.A.L. took his stepmother’s car for six days in June 2006, father arranged for C.A.L. to live with father’s sister. 

            C.A.L. argues that Dr. Peuschold was improperly influenced by his father’s statements contained in Upham’s report.  But Dr. Peuschold testified that she did not see Upham’s report until after she had completed and filed her report.  At the hearing, based on the information from C.A.L.’s father, she changed her opinion from not giving C.A.L. a diagnosis to diagnosing him with a conduct disorder, but her opinion concerning EJJ designation was formed without regard to father’s statements.  Nothing in the rules prohibits a psychologist from relying on a parent’s statements in connection with a psychological evaluation.  We conclude that C.A.L.’s argument that Dr. Peuschold improperly used father’s statements is without merit. 

            c.         Information not contained in petition

            Appellant also argues that the examiners and district court erred by considering information not contained in the probable cause portion of the delinquency petition.  C.A.L concedes that in certification and EJJ hearings the judicial determination of probable cause creates a presumption that the charges contained in the petition are true.  See In re Welfare of S.W.N., 541 N.W.2d 14, 16 (Minn. App. 1995) (indicating that a juvenile can be presumed guilty of the alleged offenses), review denied (Minn. Feb. 9, 1995), overruled on other grounds by In re Welfare of D.M.D., Jr., 607 N.W.2d 432 (Minn. 2002).  But C.A.L. argues that this presumption does not mean that everything contained in the police reports is also presumed to be true. 

            The district court stated its decision on the record and also issued detailed written findings of fact, conclusions of law, and an order.  On the record, and in its written findings, the district court noted that Dr. Gilbertson “did not take into account that a child was present during the offense, that the child observed the sexual offense.”  In discussing the planning involved in the offense, the district court also stated on the record that C.A.L had talked to the victim prior to the time of the burglary.  C.A.L. correctly asserts that neither the probable cause portion of the petition nor the record contain any reference to J.H.’s child having witnessed anything or C.A.L. having spoken to J.H. at any time.  C.A.L. asserts, without elaboration, that the district court’s reliance on these clearly erroneous facts constitutes reversible error.  We disagree.

            Whether or not the child witnessed the assault, the district court’s point that Dr. Gilbertson failed to take into account the presence of a young child in the room was a valid consideration in assessing Dr. Gilbertson’s testimony.  And the probable cause portion of the petition supports a reasonable inference that C.A.L. had watched J.H. for a sufficient time to determine where she lived and to form an opinion that she lived alone.  Whether C.A.L. spoke to J.H. prior to the burglary does not significantly affect the district court’s crediting Dr. Peuschold’s testimony that C.A.L. demonstrated a degree of planning not typical in juvenile offenses.  C.A.L. has failed to show that these factual errors had any effect on the outcome of this matter, and we conclude that these errors are harmless.

II.        Consideration of certification and EJJ in same proceeding

            C.A.L. argues that by simultaneously considering certification, EJJ, and retaining the matter as only a juvenile-court case, the district court “mixed up the several questions it had to decide, rather than approaching each of them separately.”  C.A.L. argues that because the “prosecutor went for broke” by seeking certification, the district court was precluded from considering EJJ simultaneously with certification.  We find no merit in this argument. 

            Minn. R. Juv. Delinq. P. 18.06, subd. 5(B), provides that, in a non-presumptive certification case, if the district court finds that the state did not prove by clear and convincing evidence that public safety requires certification, the court may consider designating the proceeding EJJ.  Minn. Stat. § 260B.130, subd. 1 (2006), provides that the district court may designate a proceeding EJJ as a result of a certification hearing for a child who was 14 to 17 years old at the time of an alleged offense. 

            “Designation as EJJ may only occur if the prosecuting attorney has shown by clear and convincing evidence that the designation would serve public safety, taking into account the factors specified in Rule 18.06, subdivision 3.”  Minn. R. Juv. Delinq. P. 18.06, subd. 5(B); see also Minn. Stat. § 260B.130, subd. 2 (2006).  Absent this showing, the case must proceed as a delinquency proceeding in juvenile court.  Minn. R.  Juv. Delinq. P. 18.06, subd. 5 (B); see also Minn. R. Juv. Delinq. P. 19.06 (stating that, after a motion for certification in a nonpresumptive case, the district court “may designate the proceeding” as EJJ, if the prosecutor has not met its burden on certification “and the court determines that [EJJ] prosecution is appropriate”).

            In determining whether public safety is served by designating a proceeding as EJJ, the district court must consider the following six 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; and

(6)              the dispositional options available for the child. 

 

Minn. Stat. §§  260B.130, subd. 2, .125, subd. 4 (2006); Minn. R. Juv. Delinq. P. 19.05.  These are the same factors specified for the determination of adult certification.  See Minn. R. Juv. Delinq. P. 18.06, subd. 3.  “In considering these factors, the court shall give greater weight to the seriousness of the alleged offense and the child’s record of delinquency than to the other factors . . . .”  Minn. R. Juv. Delinq. P. 18.06, subd. 3, 19.05; see also Minn. Stat. § 260B.125, subd. 4. 

            C.A.L. argues that the district court impermissibly mixed the analyses of certification and EJJ designation by treating them together with the same factual findings.  But the district court separately considered each factor and whether it weighed in favor of adult certification, EJJ, or straight juvenile disposition.  Plainly, the district court adequately considered each designation in light of each factor.

III.       Sufficiency of evidence

            C.A.L. asserts that if there was insufficient evidence that the six public-safety factors support certification, the same factors could not support an EJJ designation.  But, C.A.L. acknowledges that for certification, the prosecutor must show that retaining the proceeding in juvenile court is contrary to public safety, while in an EJJ designation, the prosecutor must show that an EJJ designation serves public safety.  Therefore, because the standards are different, a district court may decline to order certification, but, on the same evidence, designate a proceeding EJJ. 

            In this case, the district court concluded that the prosecution proved, by clear and convincing evidence, that public safety is served by designating the proceeding EJJ based on the seriousness of the offense, evidence that a stayed adult sentence will function as an effective deterrent to C.A.L.’s future involvement in criminal activity, and evidence that additional probation time will give C.A.L. time to establish more stable relationships and a network that will help him remain law-abiding. 

            An appellate court reviews under a clearly erroneous standard whether the state proved by clear and convincing evidence that public safety would be served by designating a prosecution EJJ.  In re Welfare of D.M.D., Jr., 607 N.W.2d at 437.  Appellant argues that the district court’s findings designating appellant EJJ are clearly erroneous.  We disagree.

            “The factors . . . provide guidance and must be applied but are not a rigid, mathematical equation.  Juvenile courts should have the discretion to weigh the factors in the context they are presented, and then decide whether EJJ designation is warranted according to the clear and convincing standard set forth in the EJJ statute.”  Id. at 438.   a.         Seriousness of the offense

            The court is required to take into account “the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the Minnesota Sentencing Guidelines, the use of a firearm, and the impact on any victim.”  Minn. R. Juv. Delinq. P. 18.06, subd. 3(a), 19.05(A).  This is one of two factors required to be given greater weight by the district court.  Minn. Stat. § 260B.125, subd. 4; Minn. R. Juv. Delinq. P. 18.06, subd. 3, P. 19.05.

            In this case, the district court found that “this offense is extremely serious and . . . this factor weighs in favor of EJJ designation.”  All three experts testified that the offense is serious.  Dr. Peuschold opined that appellant’s offense is “extremely serious.”  Upham and Dr. Gilbertson characterized the offense as “very serious.”  Dr. Gilbertson testified that the offense “was the kind of offense that can cause severe psychological trauma and impact upon the victim” because the assault was a surprise, the victim was sleeping, and the victim was restrained when C.A.L. placed a pillow around her head to silence her screaming.  

            C.A.L. argues that the findings on the seriousness of the offense are clearly erroneous because they were improperly based on allegations in the redacted police reports and facts that were not part of the probable-cause portion of the delinquency petition.  But the record demonstrates that Upham’s and Dr. Peuschold’s opinions were not based on the challenged police reports and, as discussed above, the minor factual errors were not prejudicial.  C.A.L. also argues that the record does not support a finding that he planned the sexual assault.  But C.A.L.’s choosing an apartment in which he believed that a young, female victim lived alone, supports such a finding.

            C.A.L. also maintains that the aggravating factors cited as making the offense particularly serious refer to the sexual assault charge, rather than the burglary charges, but, he argues, burglary is the only offense that could support the non-presumptive certification motion because fourth-degree criminal sexual conduct is a presumptive probationary offense.  Count 1 of the petition charges C.A.L. with violating Minn. Stat. § 609.582, subd. 1(c), by entering “a building, without consent and with intent to commit a crime or committed a crime, while in the building and sexually [assaulting] JH, a person within the building.”  This is the most serious charge against C.A.L and carries a presumptive executed sentence of 48 months.  The presence of a child in the room where the assault occurred and C.A.L.’s targeting the victim in the middle of the night goes to the aggravating factor of the victim’s vulnerability.  See, e.g., Dalsen, 444 N.W.2d at 584 (stating that presence of a child is an aggravating factor); see also State v. Bock, 490 N.W.2d 116, 121-22 (Minn. App. 1992) (holding that planning of attack when victim was alone in middle of night was properly considered aggravating factor), review denied (Minn. Aug. 27, 1992).  We find no merit in C.A.L.’s argument that the district court considered the seriousness of his offense only in terms of the charge of fourth-degree criminal sexual conduct contained in count 4 of the petition.

            C.A.L. argues that the district court erred by not crediting the testimony of Dr. Gilbertson rather than the testimony of Dr. Peuschold.  Dr. Gilbertson stated that Dr. Peuschold improperly evaluated C.A.L.’s behavior using an instrument that addresses assaultive or violent risk, rather than an instrument that specifically addresses sexual-offense recidivism.  But because both sexual assault and burglaries were involved, the district court was not clearly erroneous in crediting Dr. Peuschold’s testimony over Dr. Gilbertson’s, concerning a prediction of C.A.L.’s future risk for assaultive or violent behavior.  See In re Welfare of D.M.D., Jr., 607 N.W.2d at 438 (holding that district court did not err in crediting testimony of state’s experts over that of child’s expert).  Dr. Peuschold testified at length and in detail about the assessment tools she used and the basis of her opinion that C.A.L. presents a risk to public safety best addressed in an EJJ proceeding.  Dr. Peuschold discussed studies showing that juvenile sex offenders rarely have adult victims, and the fact that C.A.L.’s choice of an adult female victim makes the pool of potential victims much larger than for juveniles who may sexually offend against younger siblings.  The larger pool of potential victims, in turn, creates a greater risk to public safety.  We conclude that the district court did not clearly err by determining that the seriousness of the offenses weighed in favor of EJJ designation. 

            b.         Culpability of the child in committing the alleged offense

            The district court found that “all three witnesses agree that [C.A.L.] is culpable for the alleged offenses.  There is no evidence that [he] was enticed, deceived, manipulated, or coerced to engage in the alleged behaviors.  He appears to have acted alone.”  Dr. Peuschold and Upham both opined that C.A.L. was fully culpable for the offenses.  Gilbertson testified that C.A.L.’s alleged act of entering the apartment when he knew that someone was probably in the apartment was a “higher risk event,” and the allegation that appellant carried a knife into the apartment showed a further increased level of risk taking. 

            C.A.L. argues that his age and amenability to probation are factors that make him less culpable in committing the alleged offenses.  See Minn. R. Juv. Delinq. P. 19.05 (B) (recognizing mitigating factors under Minnesota Sentencing Guidelines as affecting culpability).  Although C.A.L. is only fourteen years old, the evidence about his intellectual ability and the planning involved in this incident support the district court’s conclusion that his culpability weighs in favor of EJJ designation.

            c.         Prior record of delinquency and programming history

            This is the second factor that is required to be given greater weight.  See Minn. Stat. § 260B.125, subd. 4; Minn. R. Juv. Delinq. P. 18.06, subd. 3, 19.05.  C.A.L. has no prior record of delinquency or prior programming history, and the district court found that this factor weighed in favor of straight juvenile jurisdiction.  This finding is uncontested. 

            d.         Adequacy of punishment or programming options available in the                                    juvenile justice system

 

            All three experts testified that the juvenile justice system has adequate programming available that is appropriate for C.A.L., but they differed in their opinions of the amount of time required to restore C.A.L. to law-abiding behavior.  The district court found that  “[a]n EJJ designation would act as a public safety net in the event that [appellant] is unable or unwilling to comply with Court orders” and that the availability of programming and the adequacy of punishment weighed in favor of EJJ designation. 

            Upham recommended the County Home School juvenile sex-offender program, or the program at the Minnesota Correctional Facility-Red Wing, both secure correctional programs.  He testified about the average time it takes to complete each program, but there is no time limit on the programs, and the time it takes to complete a program depends on a juvenile’s progress in the program.  Upham testified that there is nothing in the record that suggests C.A.L. would not be able to complete residential treatment before juvenile court jurisdiction ends on C.A.L.’s 19th birthday.  But Upham testified that EJJ supervision is more intensive and has a higher degree of accountability, with better built-in deterrents, than traditional juvenile jurisdiction.  Upham testified that because of the seriousness of C.A.L.’s offense, security is a public safety factor, and EJJ designation would allow supervision until C.A.L. is 21 years old, an additional 24 months from the 58 or 59 months available for treatment and supervision under traditional juvenile jurisdiction. 

            Dr. Peuschold agreed that nothing in the record indicates that C.A.L. cannot complete treatment before his 19th birthday, but cited the risk factors she found present in C.A.L.’s circumstances that led her to opine that a period of supervision that is longer and more intensive than supervision available in the juvenile system would be more likely to allow C.A.L. to return to pro-social behavior.  She also testified that because C.A.L. is bright and not as impulsive as most juveniles in the juvenile justice system, the possibility of an adult sanction should he not succeed in the juvenile system will be a meaningful deterrent to reoffending.

            Dr. Gilbertson opined that standard juvenile jurisdiction offers programming options for C.A.L. that are consistent with public safety.  He testified that the 57 months until C.A.L.’s 19th birthday are sufficient for him to complete a treatment program, including residential treatment, followed by structured community placement, followed by standard probationary supervision. 

            The district court referred only to “consideration of both the availability of programming and the adequacy of punishment” to conclude that this factor weighed in favor of EJJ designation.  The district court’s finding is consistent with the legislative intent of the EJJ statute: “[T]o 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.”  State v. Garcia, 683 N.W.2d 294, 300 (Minn. 2004) (citation and quotations omitted).  Because the record supports a conclusion that the possibility of an adult sentence, not available in the juvenile system, will be a meaningful deterrent to C.A.L.’s reoffending and that intensive supervision for a longer period of time than is available in the juvenile system is necessary to return C.A.L. to law-abiding behavior, we cannot conclude that the finding on this factor is clearly erroneous.

            e.         Available dispositional options

           

            The record shows that treatment programming for C.A.L. will be the same whether he is retained in the juvenile justice system or the proceeding is designated EJJ.  But there is also evidence in the record that, should treatment fail, an appropriate disposition would be incarceration, a disposition not available in the juvenile system.  The district court credited Dr. Peuschold’s testimony that, based on appellant’s intellect, a stayed adult sentence would effectively function as a deterrent.  The district court also credited Upham’s testimony that additional probation supervision time under EJJ would help appellant remain law-abiding.  See In re Welfare of D.M.D., Jr., 607 N.W.2d at 438 (holding that district court did not clearly err “in finding the testimony of the state’s experts to be more credible than that of [the child’s], and in determining that without an EJJ designation, there would be insufficient time to treat [the child]”).  The district court’s finding that this factor weighs in favor of EJJ designation is not clearly erroneous.

            The district court’s findings reflect that it weighed all of the required statutory factors in making an EJJ designation.  The court gave the most weight to the seriousness of the offense, which is one of the two factors that it is required to weigh more heavily.  But the district court did not rely exclusively on the seriousness of the offense to determine that EJJ designation is appropriate.  See, e.g., In re Welfare of L.M., 719 N.W.2d 708, 712 (Minn. App. 2006) (stating, in the context of a certification case, that although the seriousness of the offense is to be given more weight, it is not enough by itself to require certification).  The record is sufficient to support the district court’s findings and conclusion that the matter be designated EJJ.

IV.       Motion to strike

 

            C.A.L. has moved this court to strike (1) statements in respondent’s brief that refer to information that was redacted from the record and (2) the appendix to respondent’s brief, which contains a copy of the state’s brief before the Minnesota Supreme Court in In re D.M.D., Jr., 607 N.W.2d 432.  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  We grant C.A.L.’s motion to strike references in the state’s brief to information contained in the police reports because the police reports are not part of the record before this court.  But because the state’s brief to the supreme court in In re D.M.D., Jr. is available to this court for research, a matter of public record, its authenticity is uncontroverted, and it is not offered in support of reversal, it need not be stricken.  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 own research); In re Risk Level Determination of C.M., 578 N.W.2d 391, 394 (Minn. App. 1998) (denying motion to strike when challenged material was documentary, uncontroverted, and not offered to support a reversal). 

            Affirmed; motion granted in part and denied in part.