In the Matter of the Welfare of: D. V.-L., 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This opinion will be unpublished and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
A18-0681

In the Matter of the Welfare of: D. V.-L., Child.

Filed November 13, 2018
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-JV-18-767

Michael O. Freeman, Hennepin Coun ty Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for appellant Hennepin County)

Mary F. Moriarty, Hennepin County Public Defender, Paul J. Mara vigli, Assistant Public
Defender, Minneapolis, Minnesota (for respondent D. V.-L.)

Considered and decided by Florey, Presiding Judge; Ross, Judge ; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant Hennepin County Attorney’s Office appeals the district court’s denial of
its motion for presumptive adult certification of respondent juvenile. We affirm.
FACTS
On February 10, 2018, police offi cers responded to reports of a shooting in
Minneapolis. Upon arriving at the scene, officers found the victim lying on the street with
a gunshot wound near his spine a nd another in his arm. Officer s learned from the victim
that he was walking home when a vehicle driven by respondent D. V.-L. approached him.

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D.V.-L exited the vehicle’s passenger side, walked toward the v ictim, pulled a handgun
from behind his back, and shot the victim multiple times. D.V.-L. got back into the vehicle
and left the scene. As a result of his injuries, the victim is a paraplegic. D.V.-L. and the
victim had a prior altercation during which the victim pulled a knife on D.V.-L.
Officers arrested D.V.-L. at his home later that night. D.V.-L. admitted to shooting
the victim and has been detained in the Hennepin County Juvenile Detention Center (JDC)
since the night of the incident. The state charged D.V.-L. wit h one count of attempted
second-degree murder pursuant to Minn. Stat. § 609.19, subd. 1(1), and one count of first-
degree assault pursuant to Minn. Stat. § 609.221, subd. 1 (2016).
D.V.-L. turned eighteen on August 7, 2018. Because D.V.-L. was seventeen-and-
a-half years old at the time of the incident, the state moved for presumptive certification of
the proceeding under Minn. Stat. § 260B.125, subd. 3 (2016). T he psychologist who
conducted the certification stud y diagnosed D.V.-L. with unspec ified depressive-use
disorder and marijuana-use disord er. He also noted a significa nt number of events that
may have contributed to D.V.-L.’s depression in recent years, i ncluding his father’s
problematic alcohol use and subse quent medical issues, being a victim of an assault, and
having issues with school. The psychologist also conducted a v iolence-risk assessment
and considered D.V.-L. to be at a moderate risk for future violence.
The psychologist ultimately concluded that retaining D.V.-L. in the juvenile court
on extended-juvenile jurisdicti on (EJJ) would serve public safe ty. While the probation
officer did recommend adult certification, she stated that D.V. -L. could be effectively
treated in the amount of time he has remaining under EJJ superv ision. D.V.-L. has been

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accepted into two residential juve nile-correctional-treatment c enters and could also be
placed at the Red Wing Juvenile Correctional Facility.
During his detention at the JDC , D.V.-L. has had positive inter actions with peers
and staff, has participated in the various programming and recr eational activities that are
offered, and has not had any behavioral issues. D.V.-L. has no juvenile-delinquency
history, and his only prior criminal history includes a petty m isdemeanor charge of
possession of a small amount of marijuana. He completed a one- day diversion program,
and the state dismissed that charge.
The district court denied the s tate’s motion to certify the pr oceeding. This appeal
follows.
D E C I S I O N
The state argues that the district court abused its discretion in finding that D.V.-L.
had rebutted the presumption for adult certification by showing that retaining the
proceeding in juvenile court as an EJJ prosecution served public safety. We disagree.
A juvenile proceeding will be pre sumptively certified as an adu lt proceeding if:
(1) the juvenile defendant was 16 or 17 years old at the time o f 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 whil e using or employing a
firearm. Minn. Stat. § 260B.125, subd. 3. The juvenile bears the burden of rebutting this
presumption “by demonstrating by clear and convincing evidence that retaining the
proceeding in the juvenile cour t serves public safety.” Id. If the juvenile satisfies his
burden, the juvenile court retains jurisdiction in an EJJ prose cution. See Minn. Stat.

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§ 260B.125, subd. 8(b) (2016); Cf. In re Welfare of J.H ., 844 N.W.2d 28, 35, 40 (Minn.
2014) (juvenile certified as an a dult where he did not meet his burden that retaining him
under EJJ supervision served public safety). In determining wh ether public safety is
served, the district court must consider the following 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
o f f e n s e , i n c l u d i n g t h e l e v e l 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 prio r record of delinquency;
( 4 ) t h e c h i l d ’ s p r o g r a m m ing 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.

Minn. Stat. § 260B.125, subd. 4 (2016). In analyzing these factors, the district court must
give greater weight to the seri ousness of the alleged offense a nd prior record of
delinquency. Id. The factors “are not a rigid, mathematical equation,” however. In re
Welfare of D.M.D., Jr., 607 N.W.2d 432, 438 (Minn. 2000).
This court will not reverse the district court’s decision unless its 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). A
finding is clearly erroneous only if there is no reasonable evi dence to support the finding
in the record or if this court is left with the “definite and f irm conviction that a mistake

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occurred.” J.H., 844 N.W.2d at 35 (quotation omitted). We view the record in the light
most favorable to the district court’s findings. Id. at 35.
The district court has “considerab le discretion” in determining whether a child
should be certified for adult prosecution. In re Welfare of K.M. , 544 N.W.2d 781, 784
(Minn. App. 1996). That the appellant’s version of the facts m ight lead another trier of
fact to make different findings does not render the district court’s findings clearly erroneous
when there is sufficient contradi ctory evidence to reasonably s upport the district court’s
findings. See Crosby v. Crosby, 587 N.W.2d 292, 296 (Minn. App. 1998) (affirming trial
court’s findings although appellant’s version of the facts may have led another trier of fact
to make different findings). As an appellate court, our purpos e is to correct error and not
to retry the case. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n.2 (Minn. 1979).
Because a district court is in a far superior position to determine the credibility of witnesses,
we give such determinations considerable deference. In re Welfare of L.A.F., 554 N.W.2d
393, 396 (Minn. 1996).
In analyzing the factors under Minn. Stat. § 260B.125, subd. 4, the district court
found that D.V.-L. rebutted the presumption of certification by clear and convincing
evidence. Specifically, the district court found that D.V.-L.’s prior record of delinquency,
programming history, adequacy of punishment or programming avai lable in the juvenile
justice system, and the dispos itional options available all wei ghed in favor of EJJ. The
district court found that the seriousness of the offense and cu lpability weighed in favor of
adult certification. On appeal, the parties agree that D.V.-L.’s prior record of delinquency

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weighs in favor of EJJ. But the parties disagree on the remaining factors, which we address
in turn.
I. Seriousness of the offense

The state argues that the district court did not give sufficien t weight to this factor
because it failed to consider the aggravating factors present, including that D.V.-L. treated
the victim with particular cruelty, he illegally possessed a firearm, and the victim suffered
serious, life-altering injuries. We disagree.
The district court found that this factor “unequivocally favors certification” because
D.V.-L.’s actions were done willfully, he was the initial aggressor, he fired a gun in a public
area, and he shot at the victim multiple times. The district c ourt also considered the fact
that the victim suffered severe injuries as a result of D.V.-L.’s actions.
The state further argues that the more aggravating factors that are present, the less
likely EJJ would adequately punish D.V.-L. or serve public safe ty. However, the only
aggravating factor recognized by the sentencing guidelines is t hat is present here is the
“particular cruelty” with which D.V.-L. treated the victim. See Minn. Sent. Guidelines
2.D.3.b(1)-(14) (2016). The record indicates that this factor is clearly satisfied, as D.V.-L.
shot the victim multiple times and left him to die.
The district court gave great weight to this factor as required , but also found that
this was not the only factor to which to assign weight. We discern no clear error here.
II. Culpability
The district court stated that this factor was “neutral” but ul timately found that it
weighed in favor of certification because D.V.-L. failed to rebut the presumption in favor

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of certification. The state argues that the district court erred by finding that this factor was
“neutral” because D.V.-L. was co mpletely culpable, and there we re no mitigating factors
present. We agree with the state’s argument that this factor i s not neutral but agree with
the district court’s ultimate determination that this favor weighs in favor of certification.
In assessing the child’s culpability, the district court may consider “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.” M inn. Stat. § 260B.125,
subd. 4(2). Here, the district court found D.V.-L. to be “full y culpable” because he acted
alone in committing the crime, and therefore, this factor weigh ed in favor of adult
certification. The record supports the district court’s findin g that the culpability factor
weighed in favor of adult certification. D.V.-L. acted alone i n the commission of this
crime.
However, the district court considered whether D.V.L. was “part icularly amenable
to probation” in assessing culpability. See Minn. Sent. Guidelines 2.D.3.a(7) (2016). The
district court found that D.V.-L. “is amenable to probation” because he has had no behavior
issues at the JDC, has won academic awards, and would therefore be likely to succeed in a
similar residential placement with a highly structured environm ent. The district court’s
finding related to D.V.-L.’s a menability to probation is suppor ted by testimony from the
psychologist that, despite D.V.-L.’s violence, he believes D.V.-L. is a good candidate for
treatment. The psychologist opi ned that D.V.-L. would continue to succeed as he has in
the JDC in the structured environment available under EJJ super vision. This finding is

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further supported by the probation officer’s testimony that it is unusual to see a juvenile
with no behavior issues in the JDC.
But Minnesota caselaw and the s entencing guidelines are clear t hat D.V.-L. must
not be merely amenable to probation, but rather, he must be par ticularly amenable. Id.;
State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). While the district court c orrectly cited
particular amenability as the requirement, its ultimate finding that D.V.-L. “is amenable to
probation” does not rise to the level of a mitigating factor. See id., 855 N.W.2d at 308
(noting that “amenability to probation” as articulated by the d istrict court does not rise to
the level of justifying a downw ard departure”). Moreover, whil e we note that the
sentencing guidelines consider a n offender’s particular amenabi lity to probation as a
mitigating factor, this is an offender-related factor that is r elevant only to granting a
dispositional departure from the sentencing guidelines, but it is not relevant to whether or
not the offense is more or less serious than the typical offens e. State v. Solberg , 869
N.W.2d 66, 69 (Minn. App. 2015). Therefore, we are not convinc ed that this factor is
relevant to an offender’s culpability.
Nonetheless, the district court ultimately found that this fact or weighed in favor of
certification because D.V.-L. did not rebut this factor by clea r and convincing evidence.
Therefore, the district court’s finding on this factor was not clearly erroneous.
III. Programming history

The state argues that this factor supports certification becaus e D.V.-L. continued
using marijuana after completing a drug-awareness program and b ecause he has had
attendance and behavioral issues at school. We are not persuaded.

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In assessing this factor, the district court may consider the child’s “past willingness
to participate meaningfully in available programming.” Minn. S tat. § 260B.125, subd.
4(4). Programming refers to “a specialized system of services, opportunities, or projects
designed to meet a relevant beha vioral or social need of the ch ild.” J.H., 844 N.W.2d at
39. In J.H., the supreme court noted that a child’s behavior at school gen erally does not
constitute an example of programming because it does not relate to a specialized system of
programming, and its purpose is to provide a basic education, not to address behavioral or
social issues related to juvenile delinquency. Id.
The district court found that D.V.-L. rebutted the presumption i n f a v o r o f
certification because he has no c ourt-ordered programming histo ry, and he successfully
c o m p l e t e d a o n e - d a y v o l u n t a r y d i v e r s i o n p r o g r a m f o r a m i s d e m e a nor marijuana-
possession charge. The district court did not err by failing to consider D.V.-L.’s behavioral
issues and lack of attendance at school and in finding that this factor favors EJJ.
IV. Adequacy of punishment or programming and dispositional options available
The crux of the state’s argument under the final two factors, which the state argues
together, is that the programming options available under EJJ supervision are not adequate
in duration because D.V.-L. would have less than forty months under EJJ supervision. We
disagree.
The district court found that as of March 2018, D.V.-L. would h ave approximately
40 months under EJJ supervision and the presumptive sentences for D.V.-L.’s crimes were
153 months for second-degree attempted murder and 86 months for first-degree assault.
The district court found that there are several options for intensive out-of-home placements

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including the juvenile-detention facility in Red Wing and two r esidential treatment
facilities to which D.V.-L. has been accepted. Both residential options offer mental-health
services, family therapy, servi ces to help with coping mechanis ms, and an on-campus
school. The district court found that these treatment programs could adequately address
D.V.-L.’s behavior and serve public safety and that D.V.-L. would have sufficient time to
complete the residential treatment programs and have enough time under EJJ supervision.
The district court credited the psychologist’s testimony that D.V.-L.’s areas of need,
including his depression, limited social support, and coping sk ills, would be better
addressed under EJJ supervision through counseling, family ther apy, and vocational or
academic programming. Further, the psychologist testified that , based on D.V.-L.’s
personality traits, he could bene fit from the individualized tr eatment available under EJJ
supervision and would likely be compliant with treatment professionals.
Additionally, though the probation officer recommended certification, she testified
that all of D.V.-L.’s needs could be met under EJJ supervision. She stated that D.V.-L.
could successfully complete a treatment program and have enough time on supervision
while he is under EJJ supervision. She testified that the average stay in a treatment program
to which D.V.-L. would attend was nine to twelve months and can extend to 18 months
depending on the juvenile’s progress in the program. She also testified that if D.V.-L. were
certified as an adult, he would be sent to a youthful-offender program at an adult prison,
which focuses on the treatment of adults rather than being tailored to juveniles. She further
testified that if D.V.-L. were to recidivate while under EJJ su pervision, his previously
stayed adult sentence could be imposed.

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The record supports the district court’s findings that the ther e are several
dispositional options available and the punishment options are adequate. The facilities to
which D.V.-L. has been accepted will take juveniles under EJJ supervision until their 21st
birthday. Based on the length of time D.V.-L. has remaining under EJJ supervision, he has
sufficient time to complete the program. Neither the probation officer nor the psychologist
indicated that 40 months under EJJ supervision would not be sufficient time for D.V.-L. to
successfully complete treatment. Moreover, if respondent recid ivates while under EJJ
supervision, his previously stayed sentence can be imposed. The district court did not err
in finding that the last two factors weighed in favor of EJJ.
In sum, the district court did not abuse its discretion in weig hing all of the public-
safety factors. The district c ourt appropriately gave greater weight to the seriousness of
the offense and D.V.-L.’s lack of a prior delinquency record, a nd the record supports the
district court’s findings.
Affirmed.