In the Matter of the Welfare of: N.J.S., Child.

In the Matter of the Welfare of: N.J.S., Child. A06-2277, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2277

 

In the Matter of the Welfare of: N.J.S., Child.

 

Filed August 28, 2007

Affirmed

Stoneburner, Judge

 

Beltrami County District Court

File No. J80550813

 

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

 

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

 

Timothy R. Faver, Beltrami County Attorney, Dana D. Erickson, Assistant County Attorney, Beltrami County Courthouse, Suite 40, 619 Beltrami Avenue, Bemidji, MN 56601 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his certification as an adult for trial on a charge of second-degree intentional murder.  We affirm.

FACTS

 

            Fifteen-year-old appellant N.J.S. shot and killed his grandmother with a .243 deer rifle.  N.J.S. explained to police how he only pretended to take his medication on the evening of the incident and waited for his grandparents (whom he referred to as mom and dad because they were raising him) to settle down in front of the television.  Then N.J.S. took his grandfather's deer rifle, loaded it with three or four rounds, and shot his grandmother in the head.  N.J.S. said he thought about killing his grandparents, taking a handgun from the gun cabinet, and driving around with an unloaded gun and a mask, and stealing money.  Later, in his statement to the police, N.J.S. said that he did not intend to shoot his grandmother and aimed at the couch, intending to scare his grandmother and "get back at grandpa."  N.J.S. said he planned to make his grandparents give him the computer password so he could look at pornography.

            Initially, N.J.S. was deemed incompetent to stand trial and was civilly committed as mentally ill and dangerous to the public.  Competency was restored, and the state petitioned for certification of N.J.S. as an adult for trial on the charge of second-degree intentional murder.

            At the request of the district court, Minnesota Department of Corrections Senior Corrections Agent, Nicole Kern, prepared a certification report and testified in favor of certification at the certification hearing.  N.J.S.'s grandfather and husband of the victim, testified against certification.  The following exhibits were received into evidence: police reports, including N.J.S.'s statement; behavioral reports from the Northwest Juvenile Center; school reports; behavioral records from N.J.S.'s civil-commitment facility; the rule 20 psychological evaluation done by licensed psychologist Dr. Mark Haugen; the Capacity Evaluation by forensic psychologist Tricia Buss; Kern's certification report; and medical records.  Based on these findings, the district court concluded that the state proved by clear-and-convincing evidence that public safety is best served by certifying N.J.S. as an adult for trial.  This appeal followed.

D E C I S I O N

 

            In Minnesota, when a child who is more than 14 years of age but under the age of 16 is alleged to have committed an offense that would be a felony if committed by an adult, the juvenile court may enter an order certifying the juvenile for adult prosecution only if "the prosecuting authority has demonstrated by clear and convincing evidence that retaining the proceeding in the juvenile court does not serve public safety."  Minn. Stat. § 260B.125, subds. 1, 2(6)(ii) and 3 (2006).  "This court will not reverse a juvenile certification order unless the district court's findings are clearly erroneous so as to constitute an abuse of discretion."  In re Welfare of H.S.H., 609 N.W.2d 259, 261 (Minn. App. 2000) (quotation omitted).  For purposes of appeal from a certification order, the factual allegations in the delinquency petition and the charges against the juvenile are presumed to be true.  In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000); In re Welfare of J.L.B., 435 N.W.2d 595, 598 (Minn. App. 1989), review denied (Minn. Mar. 17, 1989).

            In determining whether public safety is served by certification, the court must consider six factors: (1) the seriousness of the offense; (2) the culpability of the child; (3) the child's prior record of delinquency; (4) the child's programming history; (5) the adequacy of punishment or programming; and (6) the dispositional options available.  Minn. Stat. § 260B.125, subd. 4 (2006).  Greater weight shall be given to the seriousness of the offense and the child's prior record of delinquency.  Id.

            The purpose of the public-safety factors is to determine whether the child presents a risk to the public and whether the child is likely to re-offend.  H.S.H., 609 N.W.2d at 262.  Certification is appropriate if, in the end, the factors "show that a risk to public safety exists because the juvenile's behaviors are likely to continue."  Id.  "Certification cases generally involve violent crimes against persons, such as murder or assault."  Id.  "The risk to public safety in these types of cases is clear."  Id.

            N.J.S. asserts that because he has no prior delinquency record and has never been given an opportunity to succeed in a rehabilitative placement designed to meet his needs, the district court abused its discretion by certifying N.J.S. to adult court.  Under the circumstances of this case, we disagree.

I.          Use of school records in assessing delinquency record

            N.J.S. first argues that because Minn. Stat. § 260B.125, subd. 4(3), refers only to a prior record of delinquency, the district court erred by admitting and considering evidence of his school disciplinary records to conclude that this statutory factor weighed slightly in favor of certification.  N.J.S. asserts that because the district court's certification decision was based in part on school records, the certification order must be reversed.  We disagree.

            Minn. Stat. § 260B.125, subd. 4, does not purport to be an exclusive list of the factors that a district court may consider in determining whether public safety is served by certification.  The district court acknowledged that N.J.S. has no prior record of delinquency.  In the memorandum attached to the certification order, the district court explained that the school behaviors listed in the findings demonstrated N.J.S.'s continued attempts to access Internet pornography and an escalation of non-compliant behaviors which weighed "slightly" in favor of certification. 

            In In re Welfare of K.M., we held that the district court did not abuse its discretion by considering a juvenile's unadjudicated, gang-related behavior in school in conjunction with a limited record of delinquency in assessing the weight to be given to this factor in a certification hearing.  544 N.W.2d 781, 785 (Minn. App. 1996).  We find nothing to distinguish the district court's use of evidence of N.J.S.'s escalating, non-compliant behavior at school in conjunction with his lack of any delinquency adjudications in this case.  And even if we were to conclude that the lack of a delinquency record and the nature of N.J.S.'s school behavior do not support the weight given to this factor by the district court, in this case, based on the entire record, such an error would not mandate reversal of the certification order.  The district court does not even mention this factor in its concluding remarks of the memorandum, which state that the seriousness of the crime in combination with N.J.S.'s culpability, his inability to conform to past programming, and the short period of supervision provided by the juvenile jurisdiction are the factors that compel certification.

II.        Seriousness of offense

            N.J.S. next argues that certification must be reversed because the seriousness of the offense is the only factor that weighed in favor of certification.  See, eg., In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (stating that seriousness of an offense cannot be the sole basis for certification), review denied (Minn. Aug. 20, 1996).  But N.J.S.'s argument is without merit because the district court found that other factors supported certification and did not rely solely on the seriousness of the offense.

III.       Child's culpability

            In assessing the child's culpability, the court must consider "the level of the child's participation in planning and carrying out the offense" as well as "the existence of any mitigating factors recognized by the Sentencing Guidelines."  Minn. Stat. § 260B.125, subds. 3(b), 4(2).  N.J.S. asserts that the district court clearly erred in finding that there were no mitigating factors, because mental illness qualifies as a mitigating factor under the sentencing guidelines.  But the district court did not make a finding that there were no mitigating factors.  Rather, the district court found that the evidence does not support a conclusion that N.J.S. lacks culpability due to his "persistent psychological and mental impediments."

            The district court fully explored N.J.S.'s motivation, planning, and sole responsibility for the shooting and, acknowledging that a court may consider mental impairment as a mitigating factor under the guidelines, thoroughly reviewed his treatment records.  The district court also considered N.J.S.'s age in connection with his culpability.  The district court found that despite the fact that N.J.S. "clearly labored under significant behavioral and mental impediments at the time of the shooting, . . . these conditions did not prevent [N.J.S.] from planning the assault on his grandmother."  The court noted evidence that N.J.S. understood the wrongfulness of his act.  The district court concluded that the culpability factor weighed in favor of certification.  The weight given this factor is not clearly erroneous.

IV.       Child's programming history

            N.J.S. argues that his lack of any programming through delinquency or child-protection proceedings requires that this factor be weighed in favor of retaining his case in juvenile court.  We disagree. 

            The district court properly considered N.J.S.'s prior counseling experience, N.J.S.'s programming offered at the Northwestern Minnesota Juvenile Center, and the Brainerd Child and Adolescent Behavioral Health Services Residential Treatment Center.  The district court noted that individual counseling and medication had been ineffective in minimizing N.J.S.'s aberrant sexual obsessions; that during the 55 days he spent at the juvenile center, N.J.S. received 52 consequences for a variety of negative behaviors; and that he continued to have behavioral problems at the Brainerd facility where he was committed as mentally ill and dangerous.  The record supports the district court's conclusion that this factor weighed in favor of certification.

V.        Adequacy of juvenile justice punishment or programming and dispositional options

 

            N.J.S. argues that his case should proceed under Extended Juvenile Jurisdiction (EJJ) and that the state failed to show by clear-and-convincing evidence that he could not be successfully treated within the EJJ timeframe.  He also argues that the district court's emphasis on inadequate punishment in the juvenile system for the crime committed was clearly erroneous because this consideration would preclude EJJ for nearly all juveniles charged with offenses, such as murder, that carry lengthy sentences.  Because the legislature mandated consideration of the adequacy of punishment, we cannot conclude that the district court erred by considering the disparity between the less than five years available for programming in the juvenile system and the 306-month (25.5 years) presumptive sentence for an adult charged with second-degree intentional murder and concluding that punishment in the juvenile system for this crime is inadequate.

            N.J.S. asserts that the district court inappropriately placed the burden on him to demonstrate that his "many psychological needs would be resolved by the time he turned twenty-one years old."  We disagree.  In its memorandum, the district court specifically noted that the evidence suggested that N.J.S.'s many psychological needs would not be resolved by the time EJJ ended.  The district court referred to the failure of numerous interventions to alter N.J.S.'s escalating behavior and found that the three programs available were unlikely to rehabilitate him in the less than five years remaining under EJJ.

            Affirmed.