                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0297

                     In the Matter of the Welfare of: A. M. A., Child.

                                    Filed August 3, 2015
                                          Affirmed
                                        Reyes, Judge

                              Anoka County District Court
                          File Nos. 02JV141049; 02JV141050;
                         02JV141051; 02JV141052; 02JV141053

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Jon C. Audette, Assistant County
Attorney, Anoka, Minnesota (for respondent)

       Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and

Larkin, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       Appellant A.M.A. challenges an order of the district court certifying him to stand

trial as an adult on felony charges of aggravated robbery and theft of a firearm. Because

the district court properly applied the statutory certification factors and appropriately

exercised its discretion in reaching its certification decision, we affirm.
                                         FACTS

        On July 28, 2014, Coon Rapids police officers were dispatched to a SuperAmerica

at around 4:00 a.m. after receiving a report that the gas station had been robbed. The gas

station employee, D.K., told police that a black male, who appeared to be in his 20s,

entered the store. The black male was wearing a dark baseball hat, dark clothing, and a

bandana over his face, and carrying a knife and a metal bar. The male ordered employees

to put money from the cash register into his backpack. Once the registers were cleared,

the male grabbed his backpack and ran out of the gas station.

        On August 4, 2014, at around 2:00 a.m., Coon Rapids Police officers were

dispatched to the same SuperAmerica and a Walgreens after receiving reports that

robberies had occurred. J.M., a Walgreens employee, told officers that a black male, who

appeared to be between the ages of 16 and 20, entered the store wearing a ski mask and

dark clothing. The male pointed a handgun at J.M. and ordered him to empty the cash

registers into a backpack. The male then ran out of the store with approximately $600 in

cash.

        D.K. was again working when SuperAmerica was robbed for the second time.

D.K. stated that, although the male was wearing a ski mask this time, she believed it was

the same person from the previous robbery because she recognized his eyes. The male

ordered the employees and customers in the gas station to the interior of the cash-register

station and instructed the employees to empty the money from the cash registers into a

backpack. The male took the backpack and fled the store.




                                             2
      The next day, Coon Rapids police detectives went to appellant’s residence after

they received a tip that he was involved in the robberies. Appellant spoke with the

detectives outside of his home and denied any involvement in the robberies. The

detectives asked appellant’s mother for permission to search appellant’s bedroom for

items in connection with the robberies. The detectives discovered a BB gun and a 4.5

millimeter Sig Sauer handgun in appellant’s room. They also recovered $500 in cash.

These items were seized.

      On August 15, 2014, at 12:09 p.m., T.J. reported to Coon Rapids police officers

that two handguns, including a semiautomatic pistol, and some ammunition, had been

stolen from the trunk of his vehicle. At 10:54 p.m. that evening, officers were dispatched

to a residence in Coon Rapids upon a report that a carjacking had just occurred. K.M.

and her friends were having a bonfire in the backyard when she noticed a person

approaching the gathering. As the person approached the bonfire he pointed a small

handgun at K.M. and ordered her to give him her car keys. K.M. described the person as

a black male, around 18 years old, wearing dark clothing and a hooded sweatshirt with

his face covered.

      The male pointed the gun at other people at the bonfire, stating he needed keys to

a car. Another guest, K.C., eventually gave him her car keys. The male pointed his gun

at K.C.’s back and ordered her to walk to the front of the house to show him her car.

Once K.C. pointed out her car, the male got into the vehicle and drove away.

      The following day, Coon Rapids Police Officer Steve Beberg was driving to work

when he observed someone hiding behind a vehicle in a residential driveway. Officer


                                            3
Beberg got out of his vehicle, identified himself, and displayed his police badge. The

person took off running. Officer Beberg recognized appellant and pursued him. Officer

Beberg and other uniformed officers who had arrived at the scene were eventually able to

stop and detain appellant. They later discovered one of T.J.’s handguns in the area where

appellant was running. A search of appellant’s home revealed the other stolen gun and

ammunition.

       The state filed separate juvenile delinquency petitions charging appellant with four

counts of aggravated robbery in the first degree and one count of theft of a firearm. The

state moved to certify appellant to stand trial as an adult on all charges.

       Pursuant to Minn. R. Juv. Delinq. P. 18.05, subd. 3(D), appellant waived his right

to have a probable-cause hearing and the district court determined that probable cause

was established. The matter proceeded to a three-day contested certification hearing.

The district court heard testimony from five people, including appellant’s father, a

clinical psychologist, and a juvenile probation officer.

       Appellant’s father described appellant as a “good boy” growing up, and stated that

he performed well in school. According to appellant’s father, appellant “went off” after

he turned 16 years old. Appellant became depressed, performed poorly in school, started

using marijuana, and hung out with new friends, of whom his parents did not approve.

Appellant’s parents encouraged appellant to get counseling or to attend therapy, but he

refused. Appellant’s father stated that he would allow appellant to live at home, support

him, and hold him accountable if appellant was allowed to proceed on extended-

jurisdiction juvenile (EJJ) status.


                                              4
       The psychologist recommended that appellant be certified to stand trial as an adult

on the basis of the seriousness of the offenses, appellant’s culpability, and his

programming history. The probation officer also recommended that appellant be certified

to stand trial as an adult.

       In an order evaluating the evidence presented at the certification hearing and

applying the six statutory certification factors, the district court determined that five

factors favored adult certification. With respect to appellant’s programming history, the

district court found that appellant “had one prior placement outside of the home prior to

his current court detention status” and determined that this factor was neutral. The

district court then concluded that “all factors favor certification,” noting that two of the

certification factors were to be given greater weight. Because it found that the state had

demonstrated by clear and convincing evidence that retaining the proceeding in the

juvenile court would not serve public safety, the district court ordered that appellant be

certified for prosecution as an adult. This appeal followed.

                                      DECISION

       On review of a district court’s decision to certify a juvenile to adult court, we will

affirm unless the district court abused its discretion. In re Welfare of J.H., 844 N.W.2d

28, 34 (Minn. 2014); see In re Welfare of S.J.T., 736 N.W.2d 341, 346 (Minn. App. 2007)

(“A district court has considerable latitude in deciding whether to certify, and this court

will not upset its decision unless its findings are clearly erroneous so as to constitute an

abuse of discretion.” (quotation omitted)), review denied (Minn. Oct. 24, 2007). We

apply a clearly erroneous standard to review factual findings and a de novo standard to


                                               5
review questions of law. J.H., 844 N.W.2d at 34-35. “We will not disturb a finding

about whether public safety would be served by retaining the proceeding in juvenile court

unless it is clearly erroneous.” Id. at 35.

                                              I.

       With respect to the aggravated robbery offenses, under Minn. Stat. § 260B.125,

subd. 3 (2012), certification is presumptive because appellant was 17 years old at the time

of the offenses, the charged offenses carry a presumptive prison sentence under the

sentencing guidelines and applicable statutes,1 and probable cause existed to believe that

appellant committed the offenses. Appellant may rebut the presumption of certification

“by demonstrating by clear and convincing evidence that retaining the proceeding in the

juvenile court serves public safety.” See Minn. Stat. § 260B.125, subd. 3. If he does so,

the juvenile court retains the case as an EJJ proceeding. See id., subd. 8(b) (2012). But if

appellant fails to provide sufficient evidence to rebut the presumption, the matter must be

certified. See id., subd. 3.

       The district court must consider the following six factors in determining whether

public safety would be served by certification:

                     (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

1
 Under Minnesota’s Sentencing Guidelines, the presumptive sentence for first-degree
aggravated robbery for someone with zero criminal history points is 48 months executed.
Minn. Sent. Guidelines 4.A (2012).


                                              6
              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.

Id., subd. 4 (2012). Of these factors, the district court must “give greater weight to the

seriousness of the alleged offense and the child’s prior record of delinquency than to the

other factors listed.” Id. The district court examined each of the factors in reaching its

certification decision and found that “all factors favor[ed] [adult] certification.”2 On

appeal, appellant concedes factors one and two but argues that he rebutted the

presumption that the third, fourth, fifth, and sixth factors favored certification. We will

address each disputed factor in turn.

       A.     Third factor: the child’s prior criminal history

       Appellant argues that the district court incorrectly assessed the third factor, his

prior criminal history, by improperly considering his “uncharged behavior cited in school

records.” We agree.

       A “prior record of delinquency” includes “records of petitions to juvenile court

and the adjudication of alleged violations of the law by minors.” In re Welfare of N.J.S.,

753 N.W.2d 704, 710 (Minn. 2008). Thus, it was error for the district court to consider

uncharged behavior reflected in school records when evaluating this factor. While the

2
 We note that the district court found the fourth factor—the child’s programming
history—to be neutral.

                                              7
district court did note that appellant had prior offenses consisting of theft, possession of a

weapon, and disorderly conduct, these offenses were adjudicated as petty offenses. And

appellant was referred to diversion programs for those offenses. Because there is clear

and convincing evidence that appellant’s prior history does not consist of “deeply

ingrained, escalating criminal behavior,” see In re Welfare of H.S.H., 609 N.W.2d 259,

263 (Minn. App. 2000), this factor does not support certification and this finding by the

district court was erroneous.

       B.     Fourth factor: the child’s programming history

       Minn. Stat. § 260B.125, subd. 4(4), directs the district court to consider “the

child’s programming history, including the child’s past willingness to participate

meaningfully in available programming.” “Available programming” includes “the

child’s attendance at programming events, completion of the events, and demonstrated

behavioral changes correlated with the programming.” In re Welfare of P.C.T., 823

N.W.2d 676, 683 (Minn. App. 2012), review denied (Minn. Feb. 19, 2013). This factor is

not limited to consideration of only formal programming in the juvenile justice system.

J.H., 844 N.W.2d at 39. Instead, “a specialized program provided either through the

juvenile justice system, or through a non-juvenile justice system setting, that is designed

to address a relevant behavioral or social need of the child may be considered by the

court in assessing a child’s programming history.” Id. Appellant argues that the district

court “abused its discretion when it failed to assign this factor any weight and then went

on to conclude that ‘all factors favor certification.”




                                               8
       Appellant is correct in pointing out that the district court erroneously concluded

that all factors favored certification when in fact it determined that this factor was

neutral. However, there is evidence in the record to support the district court’s finding

that this factor is neutral. Appellant’s limited programming history makes it difficult to

determine whether appellant meaningfully participated in available programming. On the

one hand, there is evidence that appellant attended two diversion hearings for his

previous adjudications of petty offenses and that he completed community work service

and sent letters of apology. On the other hand, appellant demonstrated defiant and

uncooperative behavior during his detention in the juvenile center. The district court did

not abuse its discretion in concluding that this factor is neutral.

       C.     Fifth and sixth factors: the adequacy of the programming available
              and the dispositional options available for the child

       The fifth public-safety factor involves “the adequacy of the punishment or

programming available in the juvenile justice system,” Minn. Stat. § 260B.125,

subd. 4(5), and the sixth public-safety factor considers the dispositional options available

for the child, id., subd. 4(6). The district court analyzed these two factors together3 and

concluded that they weighed in favor of certification. In doing so, the district court relied

on the psychologist’s evaluation. Because this finding is supported by the record and is

not clearly erroneous, the district court did not abuse its discretion in determining that

these factors weigh in favor of certification.



3
 These two factors are often considered together. See, e.g., In re Welfare of D.T.H., 572
N.W.2d 742, 745 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).

                                                 9
       In sum, we conclude that the district court did not abuse its discretion when it

determined that appellant did not rebut the presumption in favor of certification by

demonstrating by clear and convincing evidence that public safety would be served by

retaining the proceeding in juvenile court. See id., subd. 3. The district court completed

an analysis and made written findings with respect to each factor, and expressly stated

that it gave greater weight to the seriousness of the offense. See Vang v. State, 788

N.W.2d 111, 116 (Minn. 2010) (stating that when certification is ordered, the district

court “is not required to make specific findings on each factor” and is only required to

demonstrate that it “fully investigated the matter and carefully considered its decision”).

       While the district court erred by including appellant’s uncharged conduct from his

school records in its consideration of appellant’s prior criminal history, this error does not

warrant a reversal as there remain other statutory factors that weigh in favor of

certification. See N.J.S., 753 N.W.2d at 710-11 (affirming certification even though

district court erred by including juvenile’s uncharged incidents from school and

institutional records in consideration of juvenile’s prior record of delinquency). Because

the district court’s findings on four of the public-safety factors, including the seriousness

of the offense, are not clearly erroneous and favor certification, the district court properly

exercised its discretion when it certified appellant to be tried as an adult for the

aggravated robbery offenses.

                                              II.

       The parties agree that certification on the theft charge is nonpresumptive. See

Minn. Stat. § 260B.125, subd. 3. For nonpresumptive offenses, the state has the burden


                                              10
of proving “by clear and convincing evidence that retaining the proceeding in juvenile

court does not serve public safety.” Id., subd. 2(6)(ii) (2012). Because the district court’s

determination that four of the six factors weigh in favor of certification is supported by

the record, as discussed above, we conclude that the district court did not abuse its

discretion when it also certified appellant to be tried as an adult on the theft charge.

       Affirmed.




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