Dakota County District Court

File No. J2965725

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant J.D.B.)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent State of Minnesota)

James C. Backstrom, Dakota County Attorney, M. Christine Misurek, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent State of Minnesota)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.

Pursuant to Minn. Stat. § 260.125, subd. 2(6)(i), the juvenile court certified J.D.B. for prosecution as an adult on charges of second-degree assault and attempted second-degree murder. On appeal from the certification order, J.D.B. argues he overcame the statutory presumption of certification by presenting clear and convincing evidence that retention of the proceeding in juvenile court would serve public safety. We affirm.

In a presumptive case, the juvenile court may order certification if the child fails to demonstrate "by clear and convincing evidence * * * that retaining the proceeding in the juvenile court serves public safety." Minn. Stat. § 260.125, subd 2(6)(i) (1996). Thus, the current statute places the ultimate burden of proof on the juvenile who is presumptively certified. Minn. R. Juv. P. 18.04, subd. 4(E); In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996), review denied (Minn. Aug. 20, 1996). We will not reverse a juvenile certification order unless the court's findings are clearly erroneous so as to constitute an abuse of discretion. In re Welfare of I.Q.S., 309 Minn. 78, 86-87, 244 N.W.2d 30, 38 (1976); In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).

In determining whether certification will serve public safety, the juvenile court must consider: (1) the seriousness of the alleged offense, including the existence of aggravating factors, the use of a firearm, and the impact on any victim; (2) the culpability of the child in committing the alleged offense, including the child's participation in planning and executing the crime and the existence of mitigating factors; (3) the child's prior record of delinquency; (4) the child's history in programming, including the child's past willingness to participate meaningfully in available programming; (5) the adequacy of punishment or programming available in the juvenile justice system; and (6) the dispositional options available for the child. Minn. Stat. § 260.125, subd. 2b (1996). The juvenile court must afford greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to the other factors. Id.

J.D.B. argues he proved by clear and convincing evidence that retaining him within the juvenile system would serve public safety. However, the record demonstrates J.D.B.: (1) allegedly engaged in a heated argument with his victim in the victim's apartment, after which J.D.B., together with his accomplice, pursued the victim with a gun, firing gunshots toward the victim; (2) was concededly an active participant in the offenses, firing at least one of the gunshots himself; (3) has a record of delinquency, including, together with other misdemeanor offenses, the felony offenses of terroristic threats and attempted motor vehicle theft; (4) has been placed in out-of-home placements and programs a total of 21 times, and his ability to benefit from such programming is questionable at best; (5) has repeatedly violated the terms of his probation; (6) admits he finds criminal behavior "exciting and energizing"; and (7) has a psychological profile suggesting he is at high risk for ongoing criminality and is highly resistant to change. Psychological testing of J.D.B. shows J.D.B. has an antisocial personality disorder and that he suffers from attention deficit hyperactivity. While medication helps alleviate symptoms of these disorders, J.D.B. has a history of noncompliance with prescribed medications when outside of a structured setting. Furthermore, the court-appointed psychologist informed the court that he does not believe a juvenile program exists that can effectively treat someone with J.D.B.'s psychological profile. Given this evidence, we conclude the juvenile court did not err in finding J.D.B. failed to rebut the statutory presumption of certification.

Affirmed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.