In the Matter of the Welfare of: T.M.W., Child.

In the Matter of the Welfare of: T.M.W., Child. A05-1913, Court of Appeals Unpublished, October 10, 2006.

This opinion will be unpublished and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

A05-1913

 

In the Matter of the Welfare of:

 

T.M.W., Child

 

Filed October 10, 2006

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 27-J4-05-50690

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

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            This appeal is from an order certifying appellant T.M.W. to stand trial as an adult on charges of first-degree aggravated robbery, first-degree assault, and first-degree burglary.  Because we conclude that the district court did not abuse its discretion in excluding evidence at the certification hearing, or in certifying appellant to stand trial as an adult, we affirm.

FACTS

            The state filed two juvenile delinquency petitions alleging that appellant T.M.W. was delinquent because he had committed various criminal offenses in the course of two incidents, both occurring on January 11, 2005.  The first petition alleged that appellant broke into a private home in Plymouth, waited several hours, armed himself with a knife and confronted the victim when she returned home, stabbing her, and then driving off in her car.  The second petition alleged that appellant drove to Champlin the same day, where he robbed a store clerk while brandishing the knife.  Appellant, who was 16 at the time of the offenses, is a resident of South Carolina who in January 2005 was in a drug treatment program at Hazelden, from which he absconded before committing the alleged offenses.

            Because appellant was 16 years old, and the petitions charged him with felony offenses carrying presumptive executed sentences under the sentencing guidelines, the state moved to certify him to stand trial as an adult under the presumptive-certification statute.  See Minn. Stat. § 260B.125, subd. 3 (2004).  The district court ordered a certification study, which was performed by Tim Turrentine, a probation officer, and a psychological evaluation, which was conducted by Dr. Rebecca Reed.

            The certification study listed 15 offenses in South Carolina to which appellant had pleaded guilty.  These consisted of burglaries and related offenses committed during a one-week period in April 2004 and forgery committed in July 2004.  Dr. Reed's psychological evaluation concluded that "[i]f [appellant] is able to abstain from chemical use, the likelihood of his re-offending is probably low."  She concluded that appellant was "an appropriate candidate for extended jurisdiction [juvenile], and [she] recommend[ed] the court consider this option."

            At the certification hearing, a number of witnesses testified concerning appellant's use of drugs, including marijuana and cocaine, and his addiction to DXM, an ingredient readily available in cold medicines such as Coricidin and Robitussin.  A number of witnesses also testified that appellant had taken prescribed medications, mostly antidepressants, that included psychotropic medications.  The district court, however, ruled inadmissible the proposed testimony of a corrections officer at the Juvenile Detention Center (JDC) regarding appellant's efforts to maintain sobriety.  The court also excluded testimony from a chemical-dependency counselor regarding appellant's intoxication and mental condition at the time of the offense.  But the counselor did testify concerning the dangers of DXM and appellant's history of suicide ideation and attempts.  The district court also ruled inadmissible similar testimony from the guardian ad litem.

            Dr. Reed, who conducted the psychological evaluation for the certification motion, as well as a rule 20 evaluation, testified for the state.  She diagnosed appellant as having a mood and conduct disorder and some degree of mental impairment.  After the prosecutor reviewed the statutory "public safety" factors with Dr. Reed, she concluded that those factors weighed in favor of adult certification.  On cross-examination, Dr. Reed conceded that her initial recommendation was that appellant be handled as an extended jurisdiction juvenile (EJJ).  She admitted that appellant stated that he had taken "copious" amounts of Coricidin before the charged offenses.

            Probation officer Turrentine testified that the Plymouth offense was a serious offense and that the victim's injuries could have been life-threatening.  He also testified that appellant should be certified to stand trial as an adult.

            The district court granted the state's certification motions, concluding that the charged offense was "very serious in terms of public safety" and that the victim's injury required surgery and hospitalization for ten days.  The court found that appellant's "suicidal mental state" following the offenses "constitutes substantial grounds which may mitigate the offender's culpability under the guidelines."  But, after noting appellant's 15 prior delinquent offenses, and applying the other statutory factors, the court concluded that appellant had failed to show that retaining him in EJJ would best serve public safety.  This appeal followed.          

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion, and violated his right to present a defense to certification, by excluding evidence concerning appellant's drug use at the time of the offense and evidence regarding his subsequent attempts to maintain sobriety.  This court reviews evidentiary rulings for a clear abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

            Appellant first argues that the district court abused its discretion in excluding evidence as to his intoxication at the time of the offense, as well as his mental condition at that time.  Appellant argues that his mental state and drug use at the time of the offense are highly relevant to his likelihood of reoffending and to the risk he poses to public safety.

            As the state points out, the district court allowed significant testimony regarding both appellant's mental condition and his drug use at the time of the offense.  The probation officer testified that appellant took one prescription pill before assaulting the victim of the residential burglary, that police found white powder in the house and an empty can of air duster . . ., and that the victim described appellant as talking nonsense.  Dr. Reed testified that appellant had many pill bottles in the car when he was arrested and that he told police he had taken "copious amounts" of Coricidin before the offense.

            A party seeking relief on appeal must show prejudice as a result of the district court's rulings.  See In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993), review denied (Minn. Jan. 14, 1994).  The district court heard substantial evidence as to appellant's likely drug use just before and during the charged offenses.  Given appellant's failure to make an offer of proof as to the substance of the excluded testimony at the certification hearing, this court must conclude that it was largely cumulative to the other evidence.  See generally In re Welfare of M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001) (noting duty to make an offer of proof to preserve issue for appeal).  And given the nearly overwhelming evidence the state presented on the two most important statutory factors, the seriousness of the offense, and appellant's prior record of delinquency, appellant has not shown that the exclusion of this evidence had a significant impact on the court's decision to certify him.

            Appellant next argues that the district court abused its discretion by excluding testimony from a JDC employee and the guardian ad litem regarding appellant's attempts to maintain sobriety.  The district court ruled that the JDC employee lacked expertise in chemical dependency and, therefore, her testimony lacked proper foundation.  The court ruled that the guardian ad litem's testimony would be cumulative to that of appellant's parents and the JDC staff members who testified for the defense.

            The defense was permitted to present testimony of a correctional officer that appellant was an "excellent resident" of the JDC.  And Dr. Reed's report noted that appellant had done well in treatment programs and had abstained from chemicals during certain periods.  This evidence tended to establish appellant's compliance with juvenile programming and his past efforts to maintain sobriety.  Given appellant's failure to make a detailed offer of proof as to the evidence excluded by the district court and the similar evidence elsewhere in the record, appellant has not shown that the district court's ruling had a significant impact on the court's decision to certify him.  See id.

II.

            Appellant challenges the certification decision arguing that, although the charged offenses are serious, his culpability is mitigated by several factors.  He contends that his lengthy prior record was accumulated in a crime spree that would be treated differently under Minnesota law, that the prior programming he has received was not appropriate, and that he has demonstrated that he can succeed in an appropriate program.

            This court will reverse a certification order only if the district court's findings are clearly erroneous so as to constitute an abuse of discretion.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).

            In determining whether to certify a juvenile to stand trial as an adult, the court must consider: (1) the seriousness of the offense; (2) the culpability of the child in committing the offense; (3) the child's prior record of delinquency; (4) the child's programming history; (5) the adequacy of punishment and programming available in the juvenile system; and (6) the dispositional options available for the child.  Minn. Stat. § 260B.125, subd. 4 (2004).  The greatest weight must be placed on factors one and three.  Id.  Because appellant was 16 years old and was charged with offenses carrying presumptively executed prison sentences, appellant was required to rebut by "clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety."  Id., subd. 3(2).

            Here, the evidence regarding the seriousness of the offense and appellant's prior record of delinquency is significant.  The seriousness of a residential burglary involving the stabbing of a resident and the infliction of great bodily harm is self-evident.  And appellant's prior record of 15 felony offenses in South Carolina also weighs heavily in favor of certification.  Although appellant argues that these were accumulated in a short period of time and might have been charged differently in Minnesota, these arguments do not lessen the weight of appellant's prior record, particularly since appellant's current offenses appear to represent a serious escalation of his criminal conduct.  Specifically, appellant's South Carolina offenses involved property-theft burglaries, but in this case appellant stabbed the burglary victim and then stole her car and drove to a store that he robbed while brandishing the knife.

            In reviewing the other statutory factors, the district court found that appellant's culpability in committing the charged offenses was great because he acted alone.  We agree.  Although appellant presented some evidence of mental impairment, there was no confirmed diagnosis of a severe mental impairment that would significantly mitigate the offense.  See Minn. Stat. § 260B.125, subd. 4(2) (providing that when determining culpability, the court may consider "the existence of any mitigating factor recognized by the Sentencing Guidelines"); cf. State v. Martinson, 671 N.W.2d 887, 891 (Minn. App. 2003) (holding offender diagnosed with paranoia and schizophrenia had mental impairment "extreme enough to constitute a mitigating factor").  And if appellant was in an altered mental state at the time of the offense, it appears to have been attributable, at least in part, to his voluntary use of drugs, which is not a mitigating factor.  See Minn. Sent. Guidelines II.D.2.a.(3).  The district court also found that appellant's suicidal mental state was a mitigating factor, but that appellant's culpability weighed in favor of certification.  We agree.

            The district court found that appellant's programming history weighed in favor of certification.  We agree.  Although the district court relied in part on academic institutions and treatment programs chosen by appellant's parents that may not be relevant "programming" to the same extent as court-ordered treatment programs, the record indicated that appellant, while cooperative in treatment, failed to abstain from drugs after treatment, or even, in some cases, while in the treatment program.   

            Finally, on the last two factors, the district court found that while EJJ might provide adequate programming, it did not provide adequate punishment for appellant's conduct.  See Minn. Stat. § 260B.125, subd. 4(5).  There was testimony that the longest in-patient treatment program that appellant could be sent to in the juvenile system would last only 18 months.  Although the parties agreed there were dispositional options available for appellant in the juvenile system, they were not shown to be adequate, particularly with respect to punishment.  Thus, as the district court's order indicates, the last two statutory factors were essentially neutral as between EJJ and adult certification.

            On this record, we cannot conclude that the district court's findings are clearly erroneous so as to constitute an abuse of discretion.  The two most weighty statutory factors heavily favor certification, and the remaining factors tend to add some additional support to the district court's decision.  Accordingly, the district court did not abuse its discretion in certifying appellant to stand trial as an adult.

            Affirmed.