                          This opinion will be unpublished and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
                                     A15-0865

                      In the Matter of the Welfare of: J. G. G., Child.

                                Filed November 23, 2015
                                       Affirmed
                                      Reilly, Judge

                               Itasca County District Court
                                  File No. 31-JV-14-3623

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

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

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Grand
Rapids, Minnesota (for respondent)

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

Reilly, Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

       The district court granted respondent State of Minnesota’s motion to certify

appellant J.G.G. for adult prosecution on first-degree criminal sexual conduct charges.

Appellant challenges the certification, arguing that the district court’s finding that public

safety could not be served with juvenile prosecution is clearly erroneous. We affirm.
                                          FACTS

       Appellant J.G.G. was charged by petition on December 31, 2014, with ten counts

of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(a) (2014), for

engaging in sexual intercourse with, D.J.B., his girlfriend. J.G.G. and D.J.B. had sexual

intercourse for the first time in July 2014. J.G.G. was 17 years old at the time and is 54

months older than D.J.B., who was 12 years old at the time. The sexual relationship

continued through October 2014. D.J.B. estimated they had sexual intercourse two to

three times a week between July and October when D.J.B. found out she was pregnant.

Along with the delinquency petition, the state filed a motion for presumptive

certification. On May 7, 2015, the district court certified J.G.G. to stand trial as an adult.

It determined that all six of the public safety factors weighed in favor of certification, and

that J.G.G. had failed to demonstrate by clear and convincing evidence that retaining the

proceedings in juvenile court would serve public safety.

                                      DECISION

       We review a district court’s decision to certify a juvenile to stand trial as an adult

under an abuse of discretion standard. 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 will not

disturb a finding about whether public safety would be served by retaining the proceeding

in juvenile court unless it is clearly erroneous.” J.H., 844 N.W.2d at 35. In determining


                                              2
whether the findings are clearly erroneous, an appellate court reviews the record in the

light most favorable to the juvenile court’s findings. Id.

       When a juvenile is 16 or 17 at the time of the offense, and the underlying offense

would result in a presumptive commitment to prison under the Minnesota Sentencing

Guidelines, it is presumed that the juvenile will be certified as an adult. Minn. Stat.

§ 260B.125, subd. 3 (2014).        This presumption can be rebutted if the juvenile can

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

juvenile court serves public safety.” Id. The statute enumerates six factors for a district

court to consider when determining if certifying a juvenile to stand trial as an adult serves

public safety:

                      (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.

                 In considering these factors, the court shall give greater
                 weight to the seriousness of the alleged offense and the


                                                3
              child’s prior record of delinquency than to the other factors
              listed in this subdivision.

Id., subd. 4; see St. Louis Cnty. v. S.D.S., 610 N.W.2d 644, 650 (Minn. App. 2000) (“We

cannot emphasize too strongly that the trial court must place greater weight on the

severity of the alleged crime and the prior delinquency record of the juvenile in deciding

whether to certify.”). Our analysis of this case is guided by the supreme court’s recent

decision, In re Welfare of J.H. In that case, despite determining that the district court

erred in its application of the fourth public safety factor, the child’s programming history,

and the fact that J.H. had no delinquency record the supreme court affirmed the

certification of J.H.1 844 N.W.2d at 40. It noted:

              The juvenile court analyzed all six of the statutory public
              safety factors, made written findings regarding each factor
              even though it was not required to do so, and expressly stated
              that it gave greater weight to the seriousness of the offense
              and J.H.’s prior record of delinquency in making its decision.
              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 juvenile court
              did not abuse its discretion when it certified J.H. for adult
              prosecution.

Id.

       In certifying J.G.G., the district court determined that each of the six public safety

factors favored certification, made written findings, and expressly stated that it gave




1
  This court reversed the district court’s determination that J.H. should be certified. The
supreme court reversed the court of appeals. In re Welfare of J.H., 829 N.W.2d 607,
rev’d, 844 N.W.2d at 40.


                                             4
greater weight to the seriousness of the offense and the prior delinquency record. We

examine each factor in turn.

Seriousness of the crime in terms of community protection

       The district court found that criminal sexual conduct in the first degree was a very

serious crime and that the offenses were serious from a public safety standpoint because

J.G.G. “committed the illegal acts on multiple occasions” and “[h]e knew what he was

doing was wrong.” The district court also considered the significant impact on the

victim. D.J.B. had to deal with pregnancy at a young age and was harassed in school. It

determined that this factor weighed strongly in favor of certification. The district court

did not err or abuse its discretion in making these findings.

Culpability of the child

       In analyzing the second factor, the district court found J.G.G. was highly culpable

because he was the only participant in the offense.        When the juvenile is the only

participant in the offense, the culpability factor supports certification. S.J.T., 736 N.W.2d

at 354.   The district court also determined that no mitigating factors were present.

Although the court found that the intercourse “did not involve the use of force, violence,

coercion, or intimidation,” it noted that D.J.B. could not legally consent to the

intercourse, and therefore, her alleged consent could not be used as a mitigating factor.

See Bjerke v. Johnson, 727 N.W.2d 183, 194 (Minn. App. 2007) (“[T]he legislature has

. . . criminaliz[ed] sexual conduct with children under the age of consent irrespective of

consent”) aff’d, 742 N.W.2d 660 (Minn. 2007). The district court determined that this




                                              5
factor favored certification. The record supports this finding. The district court did not

err or abuse its discretion.

Prior record of delinquency

       Like the seriousness of the offense factor, the child’s prior record of delinquency

is one of two factors that must be given more weight. Minn. Stat. § 260B.125, subd. 4.

The district court found that J.G.G.’s prior delinquency record weighed in favor of

certification, based on its determination that J.G.G.’s prior record consisted of five

petitions involving misdemeanor level offenses.

       First the district court considered two misdemeanor driving charges: careless

driving and misdemeanor no insurance and vehicle registration. These offenses do not

fall under the definition of prior delinquency record because he was adjudicated a

“juvenile traffic offender” and the delinquency statutes exclude juvenile petty and

juvenile traffic offenders. Minn. Stat. § 260B.007, subd. 6(a)(1) (2014). It was error for

the district court to consider traffic offenses as a part of a juvenile delinquency record for

certification purposes.

       J.G.G. also was the subject of a juvenile petition in 2010 which was resolved with

a continuance for dismissal. The petition was ultimately dismissed when he complied

with the conditions imposed on him. J.G.G. objected to the admission of testimony

related to this offense at the hearing, and argues on appeal that it should not have been

considered as a part of his record. The district court concluded that under the N.J.S.

decision, it was proper to consider this charge because it “resulted in [a] petition[] to

court.” In re Welfare of N.J.S., 753 N.W.2d 704, 710 (Minn. 2008).


                                              6
       N.J.S. also informs this court’s review of J.G.G.’s prior record of delinquency.

Although the issue in N.J.S. was whether uncharged behavior may be considered when

evaluating the prior record of delinquency factor, the court’s analysis is instructive in this

case. Like this case, in N.J.S. the appellant argued that “delinquency” should include

only adjudicated conduct. The state argued that a “prior record of delinquency” also

encompassed unadjudicated conduct. The court noted that “[t]he words ‘delinquent’ and

‘delinquency’ are consistently used in chapter 260B with reference to the violation of

laws and the adjudication of petitions alleging such violations. . . . In addition, the

chapter’s statement of purpose links being ‘delinquent’ to formal allegations and

adjudications.” Id. at 709. Turning next to the definition of record, the court found that

“‘record’ is used in the chapter [260B] to refer to information created in the juvenile

court system through a petition and an adjudication.” Id. at 709-10 (emphasis added).

       In this case, the continuance for dismissal was the “suspen[sion of a delinquency

proceeding] for a specified period without a finding that the allegations of the charging

document have been proved after which [the proceeding] will be dismissed . . . on

condition that the child not commit a delinquency or juvenile petty or juvenile traffic

offense during the period of the continuance.” Minn. R. Juv. Delinq. P. 14.01, subd. 1.

The petition was ultimately dismissed without an admission of guilt and does not fall

under the definition provided in Minn. Stat. § 260B.125, subd. 4(3), as further explained

in N.J.S.. 753 N.W.2d at 707-08. The district court erred by considering it.




                                              7
       The two remaining juvenile petitions included in the district court’s analysis were

misdemeanor violations of harassment restraining orders (HRO) from spring 2013.2 One

was dismissed pursuant to a plea bargain. Therefore, the sole petition the district court

should have considered is the harassment restraining order violation for which J.G.G. was

adjudicated delinquent.    J.G.G.’s one remaining misdemeanor adjudication does not

strongly favor adjudication.

Programming History

       The district court found that J.G.G.’s “history of correctional programming in the

juvenile justice system is minimal.” His out-of-home placement history was limited to

one day, and he was never placed in a residential treatment program. The court also

acknowledged that J.G.G. had completed probation twice without being subject to a

violation and had not violated any of his current release conditions.

       In determining this factor weighed in favor of certification, the district court relied,

in part, on J.G.G.’s school failures. J.G.G. argues that it was error for the court to

consider J.G.G.’s schooling under this factor. We disagree, because the school provided

J.G.G. with specialized services that were related to the “specific behavioral or social

issues of [J.G.G.] relevant to juvenile delinquency.” J.H., 844 N.W.2d at 39. Although,

“[g]enerally, a school does not fall within the broad definition of programming,” id., here,

the district court found that the “school has provided services to address [J.G.G.’s] social

and behavioral needs.” Specifically, appellant received the services of a one-on-one

2
 Because these petitions had been resolved and were not pending petitions, this court’s
analysis in In re Welfare of R.D.M., III, 825 N.W.2d 394, 400 (Minn. App. 2013), does
not apply.

                                              8
paraprofessional who attended class with him each day. The services were tailored to

address his sexually acting out behaviors and conflicts with teachers and authority

figures.   The court noted that “[d]espite these services, [J.G.G.] has not shown

meaningful changes in behavior.”

       Appellant also had a significant history of mental health programming through

Children’s Mental Health Services (CMHS) to address his troubled childhood. CMHS

provided services between June 2010 and April 2014 including case management,

diagnostic assessments and medication services. CMHS recommended individualized

therapy, family therapy, and cognitive behavioral therapy. The diagnostic assessments all

indicated a major depressive disorder with a 2013 assessment indicating a diagnosis of

oppositional defiant disorder. J.G.G. participated in individual therapy but ultimately his

mother decided to discontinue the services and focus on school-based interventions.

       The district court’s finding that this factor weighs in favor of certification is not

clearly erroneous and the court did not abuse its discretion in finding that this factor

weighs in favor of certification.

Adequacy of punishment and programing in the juvenile system and the available
dispositional options

       The district court analyzed the last two factors together and determined they

favored certification. The probation officer identified two juvenile dispositional options

available for appellant: Mesabi Academy and MCF Red Wing. Both placements would

accept appellant up to his 21st birthday and provide sex-offender treatment. At Red




                                             9
Wing, treatment generally lasts between 24 and 42 months.             At the time of the

certification order, appellant would age out of the juvenile system in 38 months.

       The district court expressed concern that J.G.G. would not complete sex-offender

treatment before he reached 21 years of age especially given his noncompliance with past

services, and that public safety would not be served if J.G.G. did not complete sex-

offender treatment. It also found that because the charged offenses are very serious and

the “seriousness is compounded by the fact that [J.G.G.] knew that his actions were

illegal, but still engaged in them on multiple occasions,” the juvenile system did not offer

adequate punishment for the offenses. It concluded “[e]ven though relevant treatment is

available in the juvenile system, the available programming is not adequate to protect

public safety due to the likelihood that [J.G.G.] will not participate in programming

meaningfully.” The court did not err, or abuse its discretion in making these findings.

       This is a presumptive certification case, and therefore, the burden of proof is on

J.G.G. to show by clear and convincing evidence that public safety would be served by

designating his case extended juvenile jurisdiction. Minn. Stat. § 260B.125, subd. 3.

J.G.G. presented two witnesses to rebut the presumption that public safety would be

served by maintaining his case in the juvenile system, D.J.B.’s mother and Dr. Ascano, a

licensed psychologist with a subspecialty in forensic psychology. But the district court

was not persuaded by their testimony. Specifically, it discredited large portions of Dr.

Ascano’s testimony. It found that, although Dr. Ascano “clearly has the credentials to

provide expert testimony in this type of case” the court was concerned that he made his

recommendations “without being fully apprised of [J.G.G.’s] history of delinquency and


                                            10
mental health services.” We defer to the district court on matters of credibility. See In re

Welfare of Children of S.W., 727 N.W.2d 144, 151 (Minn. App. 2007) (citing In re

Welfare of Children of J.B., 698 N.W.2d 160, 167 (Minn. App. 2005)) (“The weight to be

given any testimony, including expert testimony, is ultimately the province of the fact-

finder.”), review denied (Minn. Mar. 28, 2007).

       In conclusion, the district court did not abuse its discretion when it certified J.G.G.

for adult prosecution because its findings on four of the public safety factors, including

the seriousness of the offense, are not clearly erroneous and favor certification. J.H., 844

N.W.2d at 40. Although the district court considered inadmissible delinquency petitions,

“whether the error[s] require[] reversal depends on the weight given to the inadmissible

records and the weight given [to] other factors.” N.J.S., 753 N.W.2d at 710. The district

court appropriately considered the seriousness of the offense, which is one of the factors

given greater weight, and four of the public safety factors favored certification; therefore,

any errors do not require reversal.

       Affirmed.




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