In the Matter of the Welfare of: S.J.R.

In the Matter of the Welfare of: S.J.R. A04-773, Court of Appeals Unpublished, February 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-773

 

In the Matter of the Welfare of: S.J.R.

 

Filed February 15, 2005

Affirmed

Toussaint, Chief Judge

 

 

St. Louis County District Court

File No. J8-04-650006

  Anne Leslie Roeser, Special Assistant Public Defender, P.O. Box 3264, Duluth, MN 55803 (for appellant)

 

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

 

Alan Mitchell, St. Louis County Attorney, Charles Philip Schumacher, Assistant County Attorney, 320 W. 2nd Street, Suite 403, Duluth, MN 55802 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Huspeni, Judge;* and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

             Seventeen-year-old S.J.R. participated in a robbery during which a five-year-old child was accidentally killed by one of S.J.R.'s five accomplices.  On appeal from an order certifying her to stand trial as an adult S.J.R. argues that the district court abused its discretion because she rebutted the presumption of certification with clear and convincing evidence that retaining the proceeding in the juvenile system would serve public safety.  Because the district court did not abuse its discretion by concluding that S.J.R. failed to rebut the presumption of certification, we affirm.

D E C I S I O N

            The district court has considerable discretion in determining whether certification for adult prosecution is appropriate, and we will not reverse a certification decision absent an abuse of that discretion.  In re Welfare of U.S., 612 N.W.2d 192, 194-95 (Minn. App. 2000). 

            Certification is presumptive when a child is 16 or 17 years old at the time of the offense and the offense with which the child is charged carries a presumptive prison term.  Minn. Stat. § 260B.125, subd. 3 (2002).  Because S.J.R. was 17 years old at the time of the offense and the offense with which she was charged carries a presumptive prison term, the presumption of certification applies.

            To rebut the presumption of certification, S.J.R. must establish, through clear and convincing evidence, that retaining the proceeding in the juvenile court would serve public safety.  Id.  In determining whether public safety would be served by retaining the proceeding in the juvenile system, the district court must weigh the following statutory 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.125, subd. 4 (2002).  In weighing the statutory factors, the court must give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to any other factors.  Id. 

            1.         Seriousness of the Offense 

            In evaluating the seriousness of the offense, the district court properly considered the presence of aggravating factors, including the use of a firearm, the fact that the crime resulted in the death of a five-year-old child, and the impact of the crime on the victim's family, particularly on the victim's 12-year-old brother, who was sleeping next to the victim when the shooting occurred.  See id., subd. 4(1) (listing the use of a firearm and the impact on any victim as being additional factors under the sentencing guidelines).  The crime was made even more egregious by the vulnerability of the victim and the fact that S.J.R. committed the crime as part of a group of three or four.  See Minn. Sent. Guidelines II.D. 2. b. (1), (10) (listing victim's vulnerability and commission of crime as part of group of three or four as aggravating factors justifying an upward departure from sentencing guidelines).

            S.J.R. concedes that the offense was serious, but argues that she does not present a future risk to public safety because the killing was accidental and "it is questionable at best whether [she] was aware of the gun prior to the time it discharged."  But S.J.R. admitted that she knew there were children in the apartment when she agreed to participate in the robbery and that she understood that the robbery had the potential for violence and injury.  Additionally, the evidence suggests that she was necessarily aware that a firearm was involved, because Gary Laquier, one of her accomplices, stood next to her holding a pistol in a two-handed grip while she knocked on the door to the victim's apartment.  Because S.J.R. acted with full awareness of the possible consequences of her acts, the accidental nature of the shooting does not decrease the seriousness of the offense or establish clearly and convincingly that S.J.R. does not pose a risk to public safety. 

            2.         Culpability of the Child

            For certification purposes, the charges against the juvenile are presumed true.  In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).  In addition to showing that S.J.R. participated in the robbery knowingly and with full awareness of the possible consequences of her acts, the evidence shows that S.J.R. helped with the planning, gave the group directions to the apartment, and knocked on the door.  The expert testimony also established that there were no mitigating circumstances.  The fact that S.J.R. did not pull the trigger herself does not preclude certification.  See In re Welfare of K.C., 513 N.W.2d 18, 22 (Minn. App. 1994) (upholding certification of juvenile who was only a "passive accomplice"), review denied (Minn. May 17, 1994). 

            3.         Prior Rrecord of Delinquency

            S.J.R. argues that her prior record of delinquency, which involves only an adjudication on a shoplifting charge, weighs against certification.  But the lack of an extensive record of delinquency does not, by itself, preclude certification.  See In re Welfare of J.A.R., 408 N.W.2d 692, 693, 695 (Minn. App. 1987), review denied (Minn. Aug. 26, 1987) (upholding certification of 14-year-old juvenile whose prior record included only adjudications of incorrigibility and lurking with intent to commit a crime). 

            4.         Programming History

            The district court found that S.J.R. had no programming history.  Although the lack of programming history weighs against certification, the evidence shows that S.J.R. failed to appear for referral to a diversion program after being charged with theft, and later failed to complete the terms and conditions of probation (an apology and 16 hours of community work).  S.J.R.'s failure to appear for referral to a diversion program and her failure to comply with the conditions of probation do not bode well for treatment.

            5.         Adequacy of Punishment or Programming and Dispositional Options

            The district court recognized that the experts agreed that S.J.R. would benefit from treatment, such as that available through the Woodland Hills Program.  But because of the limited time remaining for supervision in the juvenile system and the need for a secure facility, the court found that juvenile programming would not eliminate or substantially lessen the public-safety risk demonstrated by S.J.R.'s conduct.  The evidence supports the district court's finding.

            Dan Bartlett, the probation officer assigned to the certification study, testified that although there were some programming options for S.J.R., the severity of the offense and her adult lifestyle warranted a significant period of correctional detention, as well as supervision beyond S.J.R.'s 21st birthday.  According to Bartlett, the treatment, supervision, and punishment S.J.R. needed would require more time than the time remaining under juvenile jurisdiction, even with an extended-juvenile-jurisdiction (EJJ) designation.  See U.S., 612 N.W.2d at 197 (stating that insufficient time for rehabilitation is appropriate consideration when deciding whether to certify a juvenile); St. Louis Co. v. S.D.S., 610 N.W.2d 644, 650 (Minn. App. 2000) (stating that limited time remaining in juvenile system is relevant to the certification decision.  EJJ was not, therefore, a dispositional option.

            Charles Orsak, the psychologist who evaluated S.J.R., indicated that placement in a secure facility would address the public-safety issue.  But of the available juvenile programs, only the Arrowhead Juvenile Center is a secure facility and, in Bartlett's opinion, the 90 to 120 day program at Arrowhead was too short.

            S.J.R. argues that she provided clear and convincing evidence that she is amenable to treatment and that appropriate treatment is available in the juvenile system.  But although Orsak indicated that S.J.R.'s antisocial characteristics did not appear entrenched and that she was a "viable candidate for participation in treatment programs designed for juveniles with behavioral disorders," Bartlett testified that even with an EJJ designation, the three years of supervision time remaining after treatment was insufficient considering the nature of the crime.  The district court, in the exercise of its discretion, agreed with Bartlett.

            S.J.R. next argues that Bartlett's concerns about the lack of adequate supervision are based on the severity of the crime, rather than on evidence that longer supervision was necessary for public safety.  But the severity of the crime, coupled with S.J.R.'s age, her willing participation in the crime, and her awareness of the possible consequences of her actions, support Bartlett's view that the time remaining for supervision after treatment is insufficient to ensure public safety or to adequately punish S.J.R. for her crime.

            S.J.R. also argues that the court failed to balance the statutory factors and placed undue emphasis on the severity of the crime when it stated that "[n]othing has been shown to change the public safety risk which [S.J.R.'s knowing participation in the crime] demonstrate[d]."  The record, however, shows that the court weighed and made findings on all the statutory factors and did not abuse its discretion by giving additional weight to the severity of the offense and S.J.R.'s culpability.

            Finally, S.J.R. argues that this was an isolated incident and that there is no evidence of an escalating pattern of dangerous behavior or that such behavior is likely to continue.  But the evidence shows that over time, S.J.R.'s behavior has escalated from petty theft to armed robbery.

            We also note that except for Laquier's 15-year-old brother, all of S.J.R.'s accomplices were sentenced to prison terms.  The 18-year-old female who drove the car was sentenced to a 12-year prison term (10 years stayed and 9 months in jail); the two 22-year-old females were sentenced to 13 and 10 years in prison, respectively; and Laquier was sentenced to 20 years in prison.  The adequacy of punishment is one of the statutory factors.  See Minn. Stat. § 260B.125, subd. 4(5).  In light of the punishment her accomplices received, retaining S.J.R. in the juvenile system for a maximum of three years is insufficient.  Independent of the sentences her accomplices received, three years in the juvenile system for a crime that resulted in the death of a five-year-old child is also insufficient in terms of punishment.   

            Affirmed.

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