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

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Foley, Judge.[*]

This appeal is from an order certifying D.R.S., a juvenile, to stand trial as an adult on three delinquency petitions charging third degree controlled substance offense, aggravated robbery, third degree murder, and several lesser offenses. Because we conclude that the district court did not err in its evidentiary rulings and did not clearly abuse its discretion in certifying D.R.S. to be tried as an adult, we affirm.

At the start of the certification hearing, the district court granted a defense motion to vacate D.R.S.'s two criminal convictions, with the understanding that the state had already re-filed them as the first two of the three delinquency petitions on which it was seeking to certify D.R.S. The parties agreed that the first petition, charging third degree controlled substance offense, was not a presumptive certification case, but that in the other two petitions the statutory presumption of certification applied. The defense stipulated to the psychological evaluation and the certification study, and questioned the authors of those reports in an attempt to rebut the presumption of certification. The district court certified D.R.S. to stand trial as an adult on all three petitions.

District courts may liberally admit background evidence, including hearsay that would otherwise be inadmissible, at certification hearings. In re Welfare of T.L.J., 495 N.W.2d 237, 239-40 (Minn. App. 1993); see Minn. R. Juv. P. 18.04, subd. 4(B) (court at certification hearing may receive any relevant information including reliable hearsay). D.R.S. did not object to the references to the adult criminal files that were made in the certification study and the psychological report. He acknowledges that the failure to object narrows our review to whether the admission of the evidence was plain error. See generally State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984) (court may review for error as to fundamental law despite failure to object); cf. Minn. R. Crim. P. 31.02 (appellate court may consider claim of plain error although not brought to attention of district court).

The evidence establishes that D.R.S. was a juvenile when he committed the first two offenses, and consequently the adult convictions were appropriately vacated. But D.R.S. presents no authority, and we find none, requiring the suppression of all facts related to the adult prosecutions. The evidence demonstrating D.R.S.'s failure on probation, his use of aliases, and his providing false birth dates should not be excluded merely because it was part of a vacated adult prosecution file. There was no plain error in admitting this evidence.

The aggravated robbery and third degree murder (and criminal vehicular operation) offenses are presumptive certification offenses. See Minn. Stat. § 260.125, subd. 2a (1996). Thus, D.R.S. bore the burden of demonstrating by clear and convincing evidence that public safety would be served by designating those proceedings extended jurisdiction juvenile (EJJ) proceedings rather than certifying D.R.S. as an adult. See Minn. Stat. § 260.125, subds. 2a, 5. There are six statutory factors for determining whether public safety is served by certifying a juvenile as an adult. Minn. Stat. § 260.125, subd. 2b. These factors apply to both presumptive and non-presumptive certification cases. See generally In re Welfare of K.A.P., 550 N.W.2d 9, 11 (Minn. App. 1996) (applying statutory factors to presumptive certification case), review denied (Minn. Aug. 20, 1996); cf. Minn. R. Juv. P. 18.05, subd. 3 (six statutory factors provided for all "public safety" determinations, including EJJ). Both the psychological evaluation and the certification study recommend certification.

The district court found that the aggravated robbery and third degree murder incidents were extremely serious. The court noted that D.R.S. allegedly wielded the handgun in the aggravated robbery and threatened to kill the victim. In the third degree murder incident, D.R.S. was allegedly driving the vehicle, fleeing police, leading them on a high-speed chase, and proceeding the wrong way down the Interstate, causing the death of the victim in a head-on collision. Thus, he was the most culpable participant in each episode. Moreover, D.R.S.'s age (he was 181/2 years old at the time of the certification hearing) leaves little time for meaningful treatment and supervision in the juvenile court, even under EJJ.

D.R.S. argues that his lack of a proven prior juvenile record weighs against certification. But the record shows that D.R.S. has used aliases and false identifications that could easily mask the lengthy involvement with gangs, extensive use of drugs, and routine possession of firearms that D.R.S. himself admitted. These admissions not only cancel the lack of documentation of a juvenile record, they also provide independent evidence of D.R.S.'s dangerousness. See generally K.A.P., 550 N.W.2d at 12 (state must present independent, non-offense-related evidence of dangerousness to support certification). A consideration of the six statutory factors, along with the presumption of certification applicable to two of the three petitions, establishes that the district court did not abuse its discretion in certifying D.R.S. as an adult.

Affirmed.

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