In the Matter of the Welfare of: D. L. M., Child.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0509

In the Matter of the Welfare of: D. L. M., Child.

Filed November 5, 2018
Affirmed
Hooten, Judge

Anoka County District Court
File No. 02-JV-17-1446

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant D.L.M.)

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent county)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant, a minor at the time, was charged with second-degree felony murder. The
juvenile court certified appellant as an adult. He now appeals, arguing that the juvenile
court abused its discretion by certifying him despite the contrary recommendations of the
two experts who testified at trial. We affirm.

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FACTS
For the purposes of certification determinations, the charges and factual allegations
laid out in the juvenile delinquency petition are presumed to be true. In re Welfare of J.H.,
844 N.W.2d 28, 38 (Minn. 2014). The following factual recitation is based on the
delinquency petition.
On the evening of November 10, 2017, appellant D .L.M., who was 17 years old at
the time, was hanging out with L .G. and J.M. At the request of L .G. and D.L.M., J.M.
looked into acquiring marijuana. J .M. contacted T.P., who offered to sell him marijuana.
L.G. and D.L.M. told J.M. to steal the marijuana rather than pay for it. L.G. drove the trio
to T.P.’s residence. T.P. and T.R., the sellers, jumped into the back of the car, and T.P.
showed the trio the marijuana for sale. L.G. and D.L.M. informed the sellers that they did
not have enough money to purchase all the marijuana, so T.R. and T.P. offered to go back
inside the residence, remove some of the marijuana, reweigh it, and adjust the price
accordingly. J.M. followed T.P. and T.R. into the residence. At some point, J.M. grabbed
the bag of marijuana and fled to the car. T.P. and T.R. followed in hot pursuit.
At this point, the witness ac counts in the petition differ. J .M. told police that he
managed to enter the car and close and lock the door despite T .R. attempting to prevent
him from doing so. T .P. told police that he held the car door open while T .R. tried to
retrieve the stolen mar ijuana. During the scuffle, D .L.M. pulled out a nine-millimeter
pistol and pointed it at T.R. L.G. backed out of the driveway and accelerated away quickly.
T.R., who was still struggling with the door as L .G. was attempting to drive away, was
knocked to the ground and run over by the vehicle. T.R. died from his injuries.

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Anoka County charged D.L.M. with second-degree felony murder under Minn. Stat.
§ 609.19, subd. 2(1) (2016). The state moved to certify D.L.M. as an adult. A certification
study was ordered, and the Anoka County juvenile court held a certification hearing.
Probation officer Janie Vadnais conducted the certification study of D .L.M., and Dr. Fran
Stawarz conducted a psychological evaluatio n. Both testified at the certification hearing ,
and both recommended extended juvenile jurisdiction (EJJ) rather than certification. The
juvenile court certified D.L.M. as an adult. This appeal follows.
D E C I S I O N
D.L.M. challenges the juvenile court’s decision to certify him as an adult. Under
Minn. Stat. § 260B.125, subd. 3 (2016), there is a presumption that a juvenile will be
certified as an adult if: (1) the juvenile defendant was 16 or 17 years old at the time of the
offense and (2) the alleged offense would result in a presumptive prison commitment under
the sentencing guidelines and statutes or a felony offense was committed while using or
employing a firearm. Both requirements were met in this case. “If the court determines
that probabl e cause exists . . . the burden is on the child to rebut this presumption by
demonstrating by clear and convincing evidence that retaining the proceeding in the
juvenile court serves public safety.” Id. To determine whether it serves public safety,
juvenile courts are to consider six 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

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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 (2016). Factors one and three —seriousness of the offense and the juvenile’s
prior record—are to be given greater weight than the other factors listed. Id. “A [juvenile]
court has considerable latitude in deciding whether to certify a case for adult prosecution.
Its decision will not be reversed unless [the court’s] findings are clearly erroneous so as to
constitute an abuse of discretion.” In re Welfare of P. C.T., 823 N.W.2d 676, 681 (Minn.
App. 2012) (quotation omitted) , review denied (Minn. Feb. 19, 2013) . “In determining
whether the juvenile court’s findings are clearly erroneous, we view the record in the light
most favorable to the juvenile court’s findi ngs.” J.H., 844 N.W.2d at 35. “A finding is
clearly erroneous only if there is no reasonable evidence to support the finding or when an
appellate court is left with the definite and firm conviction that a mistake occurred.” Id.
(quotation omitted).
D.L.M. broadly argues that the juvenile court abused its discretion because its
decision was contrary to the recommendations of Dr. Stawarz and Vadnais. We emphasize
that the burden was on D .L.M., not the state, to prove by clear and convincing evidence
that public safety would be served by putting him on EJJ rather than certifying him as an
adult. See Minn. Stat. § 260B.125, subd. 3. Accordingly, we turn to the six statutory

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factors to see if the juvenile court clearly erred in any of its findings on the statutory factors,
and if so, whether that amounts to an abuse of discretion.
The juvenile court found that the first two factors —severity of the crime and
culpability of the juvenile—favored certification. These findings are clearly supported by
the r ecord because both Dr. Stawarz and Vadnais testified that both of these factors
weighed in favor of certification.
The juvenile court found that the third factor —D.L.M.’s prior record consisting of
two prior incidents —favored certification. The first i ncident was a 2017 adjudication of
delinquency from Indiana for resisting law enforcement which led to D.L.M. spending 14
days in detention. D .L.M. and two other boys had been under police surveillance for
engaging in what appeared to be the sale of drugs, with D.L.M. acting as a lookout. When
police told the boys to stop and place their hands on the squad car, D.L.M. and the other
boys ran and one of the three dropped a handgun . The second incident occurred when
D.L.M. hit another student a t school and was charged with misdemeanor assault . The
juvenile court was particularly concerned with the timing of these incidents. It explained
that the Indiana adjudication, the assault charge, and the felony -murder charge all
“occurred within just a few months an d suggests escalating, out of contro l behavior.”
While reasonable minds can differ on this conclusion, i n light of the two prior incidents
that D.L.M. was involved in shortly before T .R.’s death, we cannot say that the record is
devoid of any reasonable evidence to support the juvenile court’s finding.
While both Dr. Stawarz and Vadnais testified that the third factor weighed in favor
of EJJ, th ese expert opinions do not make the juvenile court’s finding clearly erroneous.

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For example, in J.H., the Minnesota Supreme Court held that, because appellate courts
should defer to a juvenile court on matters of the credibility and weight to be given to
testimony, a juvenile court’s finding that a factor favors certification was not clearly
erroneous despite the testimony of a juvenile probation officer and a clinical psychologist
that the factor favors EJJ. 844 N.W.2d at 39. There may be situations in which a finding
that is in conflict with expert testimony is clearly erroneous, but this prior-delinquency
factor does not depend as much on the specialized knowledge and insight offered by expert
witnesses as some of the other factors. For example, while psychologists and probation
officers have valuable insight into whether certain programming is likely to help a juvenile,
their specialized knowledge is less useful , particularly in cases such as this, in assessing
whether a crime is serious or whether a juvenile has a prior record.
The juvenile court found, consistent with the testimony of both experts , that the
fourth factor—programming history—favored EJJ. The juvenile court did not clearly err
on this factor.
The juvenile court analyzed the fifth and sixth factors in tandem and determined
that they favored certification. The fifth factor is the ad equacy of the punishment or
programming available in the juvenile justice system, and the sixth factor looks to the
available dispositional options. The juvenile court reasoned that D .L.M. had not shown
that the eight to twelve months that he would spend in a secure juvenile correctional
program, followed by two to three years of probation, would be sufficient to protect public
safety or provide appropriate punishment . Dr. Stawarz and Vadnais both testified that
factors five and six favored EJJ. While we recognize the value of these experts’ insights

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on these factors, we cannot say that the juvenile court clearly erred with respect to these
factors. D .L.M. was 17 at the time that T.R. was killed. In light of the severity of this
crime and the fact that D.L.M.’s probation would end at the age of 21 under EJJ, the
juvenile court’s concerns about the adequacy of the juvenile justice system to ensure public
safety are not unfounded.
We hold that the juvenile court did not clearly err in any of its findings. The juvenile
court found that all of the factors except factor four weighed in favor of certification. Given
our narrow standard of review and the record in this case, we cannot conclude that the
juvenile court abused its discretion in concluding that D .L.M. failed to overcome the
presumption of certification. And even if the district court did err in its findings on factors
five and six, factors one and three weigh more heavily, so in balance D.L.M. still has not
overcome the presumption against certification.
Affirmed.