A20-0368

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0367
A20-0368

In the Matter of the Welfare of: E. M. H., Child.

Filed August 17, 2020
Affirmed
Frisch, Judge

Washington County District Court
File Nos. 82-JV-19-636, 82-JV-19-637

Deborah Ellis, Susan Johnson, Ellis Law Office, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Trici a A. Loehr, Assistant County Attorney,
Stillwater, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Frisch,
Judge.
U N P U B L I S H E D O P I N I O N
FRISCH, Judge
In this consolidated appeal from orders certifying appellant for adult prosecution on
first-degree criminal -sexual-conduct charges, appellant argues that (1) the district co urt
erred by adopting the state’ s proposed findings of fact and conclusions of law nearly
verbatim, and (2) the district court abused its discretion by certifying him for adult
prosecution. We affirm.

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FACTS
On August 19, 201 9, the state filed two juvenile -delinquency petitions against
E.M.H. In the first petition , the state charged E.M.H. with one count of crim inal sexual
conduct in the first degree pursuant to Minn. Stat. § 609.342, subd. 1(e)(i) (2018). In the
second petition, the state charged E.M.H. with three counts of criminal sexual conduct in
the first degree pursuant to Minn. Stat. § 609.342, subd . 1(e)(i), and one count of fals e
imprisonment pursuant to Minn. Stat. § 609.255, subd. 2 (2018).
The first petition sets forth the following allegations. On September 7, 2018, when
E.M.H. was 16, E.M.H. contacted the victim and asked if she would like to get some food.
They agreed to go to a restaurant, but E.M.H. instead drove the victim to a nearby parking
lot. E.M.H. tried to kiss the victim. The victim backed away and told E.M.H. that they
were just friends. E.M.H. again tried to kiss the victim , and the victim moved away from
E.M.H. E.M.H. grabbed the victim around her neck and tried to kiss her again. E.M.H.
attempted to put his hands down the victim’s pants. The victim said, “no, no ,” and told
E.M.H. to leave her alone. E.M.H. moved to the back seat of his car and instructed the
victim to do the same. The victim refused until E.M.H. “got directly behind her and put
one hand around her throat, impairing her ability to breathe.” The victim “couldn’t talk
and was gasping for air.” E.M.H. again directed the victim to move to the back seat of the
car, and the victim complied. E.M.H. grabbed the victim’s leg and attempted to kiss her.
The victim attempted to push E.M.H. away and told him no . E.M.H. then removed all of
the victim’s clothing, along with his pants and underwear. When the victim again said no,
E.M.H. put his hands around the victim’s throat with such force that “she believed he would

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hurt her, so she just stopped moving and thinking because she was scared.” E.M.H. then
put his p enis in the victim’s vagina. E.M.H. drove the victim home. E.M.H. sometime
thereafter sent the victim a message that he “felt bad and felt like he kind of forced her.”
The second petition sets forth the following allegations. E.M.H. and a separate
victim were acquainted from school and one prior date. E.M.H. had previously pressured
the victim to have sex with him , and she said no. On November 2, 2018, when E.M.H.
was 16, E.M.H. asked the victim to get together with him. The victim thought they were
going to get ice cream, but E.M.H. instead drove to the parking lot of a city park. E.M.H.
asked the victim to move an item into the backseat, then convinced the victim to stay in the
backseat and talk. E.M.H. began touching the victim’s thigh. The victim told E.M.H. to
stop and stated that she needed to leave. E.M.H. again touched the victim and attempted
to kiss her. The victim tried to exit the vehicle through the door, but the door would n ot
open. The victim believed that E.M.H. had activated the child locks on his car. The victim
tried to crawl into the front seat of the car. E.M.H. grabbed the victim and pulled her to
the backseat. The victim then attempted to place an emergency call on her cell phone.
E.M.H. took the phone and threw it to the front seat. E.M.H. touched the victim’s leg near
her vagina, and the victim told him to stop. The victim again tried to climb into the front
seat, but E.M.H. grabbed her and pulled her into the backseat. E.M.H. pushed the victim
down, reached inside the victim’s leggings and digitally penetrated her vagina. The victim
began to cry and tried to push E.M.H. away. E.M.H. held the victim down with sufficient
force to bruise the victim’s arm. E.M.H. attempted to remove the victim’s underwear, but
the victim held her underwear in place. E.M.H. then pinned the victim’s right arm behind

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her head, penetrated her vagina with his penis and said , “I’m sorry, you’re too ugly right
now. I have to cover your eyes,” and if the victim would “quit crying, everything [would]
be okay.” E.M.H. then became angry when the victim’s phone rang. The victim told
E.M.H. that she needed to leave and would walk home. E.M.H. replied that he “would
drive her home if she would suck his dick .” The victim again attempted to climb into the
front seat of the vehicle. E.M.H. grabbed the victim by her hair and pulled her into the
backseat. E.M.H. forced his penis into the victim’s mouth. The victim saw a light she
believed originated from E.M.H.’s cell phone . The victim attempted to lift her head , but
E.M.H. forcibly prevented her from doing so. E.M.H. thereafter repeatedly called the
victim “ugly” and “disgusting” and drove her to a location near a friend’s home. As E.M.H.
drove away, E.M.H. “told her not to tell anyone or he would put the video out.” The victim
asked E.M.H. what he meant, and he played a few seconds of a video recording showing
E.M.H. forcing the victim’s mouth onto his penis.
In both cases, t he state sought presumptive adult certification under Minn. Stat.
§ 260B.125, subd. 3 (2018). The district court found probable cause for the underlying
offenses and scheduled a certification hearing. A probation agent conducted a certification
study and recommended that E.M.H. be prosecuted as an extended jurisdiction juvenile
(EJJ) rather than being certified for adult prosecution. On January 31, 2020, the district
court held a certification hearing and received testimony from the probation agent, who
testified that he had never recommended adult certification in any of his cases.
The district court asked the parties to submit proposed order s. On February 12,
2020, E.M.H. submitted his proposed order. On February 14, 2020, at 1:38 p.m., the state

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submitted its proposed order. On February 14, 2020, at 4:19 p.m., the district court issued
its order certifying E.M.H. as an adult. This appeal follows.
D E C I S I O N
I. The district court did not commit reversible error by adopting the state’s
proposed findings of fact and conclusions of law.

E.M.H. argues that the district court erred by adopting the state’s proposed order,
“virtually word for word with the exception of a single paragraph inserted by the court”
and less than three hours after the state submitted its proposed order.
“Appellate courts disfavor the verbatim adoption of a party’s proposed ruling by the
district court but do not automatically reverse a district court for doing so.” Suleski v. Rupe,
855 N.W.2d 330, 339 (Minn. App. 2014). We review a district court’s verbatim adoption
of one party’s proposed findings by conducting “a careful and searching review of the
record.” Dukes v. State , 621 N.W.2d 246, 258 (Minn. 2001). Verbatim adoption alone
does not provide sufficient grounds for reversal. Id. at 259.
Although very similar, the order signed by the district court is not a verbatim
adoption of the s tate’s proposed order. Of particular note, the district court added a full
paragraph of findings regarding E.M.H.’s acceptance of responsibility and amenability to
treatment based on its review of the certification study:
The Court also notes that it is aware that while the
Juvenile has been seeing a therapist related to sex offender
treatment during the pendency of this matter —it is clear from
the Certification Stud y that the Juvenile has denied
delinquent/criminal involvement in each of the events in the
therapy sessions and therefore an engaged or therapeutically
successful outcome in a juvenile sex offender treatment
program as a delinquency matter is a[t] best questionable.

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Our review of the district court’s order reflects additional, albeit relatively minor,
differences as compared to the state’s proposed order. The totality of these additions and
changes reflect deliberate consideration and action by the district court.
Our careful and searching review of the record reveals that the order of the district
court is well supported by the record and contains the required findings. In a presumptive
certification order, the district court is only required to include findings of fact relating to
E.M.H.’s date of birth, the date of the alleged offense, and why the court upheld the
presumptive certification. Minn. R. Juv. Delinq. P. 18.07, subd. 2(a)(3). The order
contains the required findings, including a detailed e xplanation of why the district court
applied the presumption of adult certification. We find no error by the district court.1
II. The district court did not abuse its discretion by certifying E.M.H. as an adult.

E.M.H. argues that the district court abused its discretion by certifying him as an
adult. We review an adult certification order for an abuse of discretion. In re Welfare of
J.H., 844 N.W.2d 28, 34 (Minn. 2014). We review legal questions de novo and findings
of facts for clear error. Id. at 34 -35. Certification to adult court is presumed if “(1) the
child was 16 or 17 years old at the time of the offense; and (2) the delinquenc y petition
alleges that the child committed an offense that would result in a presumptive commitment

1 We note that the district court’s adoption of the majority of the state’s proposed order and
the short turnaround between the submission of that proposed order and the issuance of the
district court’s final order gave rise to E.M.H.’s question of confidenc e. Although we
conclude that the district court did not err here, we emphasize that we discourage the
wholesale adoption of a party’s proposed order. “[T]he practice of the verbatim adoption
of a party’s proposed findings and conclusions is hardly commendable.” Pederson v. State,
649 N.W.2d 161, 163 (Minn. 2002).

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to prison under the Sentencing Guidelines and applicable statutes.” Minn. Stat.
§ 260B.125, subd. 3. In a presumptive certification proceeding where the district court has
found probable cause that the juvenile committed the alleged offense , the juvenile has the
burden of establishing, through clear and convincing evidence, that retaining the
proceeding in juvenile court serves public safety. Id.
To det ermine whether public safety is served by certifying the matter , the court
considers the following 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
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 ad equacy 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 (2018); see also Minn. R. Juv. Delinq. P. 18.06, subd. 3
(setting forth the same factors) . A district court must afford g reater weight to the
seriousness of the offense and the prior record of delinquency than the other statutory
factors. Minn. Stat. § 260B.125, subd. 4; In re Welfare of U.S. , 612 N.W.2d 192, 195
(Minn. App. 2000). “For purposes of certification, the juvenile is presumed guilty of the
alleged offense s.” U.S., 612 N.W.2d at 195. We will not reverse a finding regarding

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whether public safety will be served by certification unless clearly erroneous. J.H., 844
N.W.2d at 35.
As a threshold matter, adult certification was presumptive because E.M.H. was 16
at the time of the offenses and the offenses carry presumptive prison sentence s if he were
tried as an adult. E.M.H. does not dispute that certification was presumptive but instead
argues that the district court abused its discretion in certifying him for adult prosecution
against the recommendation of the certification study and clear and convincing evidence
that retaining him in juvenile court under EJJ served public safety.
First, E.M.H. admits that the charged offenses are serious and that this factor weighs
in favor of certification. E.M.H. argues that the district court clearly erred by finding that
both charges included the potential aggravating factor of particular cruelty , but he offers
no specific reason to dispute that the allegations referenced by the district court show the
infliction of pain and cruelty beyond that normally associated with these offenses . Based
on our review of the record, the district court correctly found that each of the petitions
contained allegations potentially giving rise to the aggravating factor of particular cruelty.
The first petition contains allegations that E.M.H. used child locks to prevent the victim
from l eaving and took the victim’s phone to prevent her from seeking emergency
assistance. The second petition contains allegations that E.M.H. called the victim “ugly”
and “disgusting” and threatened the victim with release of video footage depicting the
incident. We see no clear error by the district court in its assessment of the seriousness of
the offenses.

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E.M.H. next argues that the district court abused its discretion in concluding that his
culpability weighed in favor of adult certification . We examine the alleged offenses in
determining whether a juvenile is culpable. J.H., 844 N.W.2d at 38. The district court
found that E.M.H. was solely responsible for the allegations set forth in the petitions, which
the district court must accept as true in an adult certification proceeding. U.S., 612 N.W.2d
at 195. The district court further noted the allegations that E.M.H. “sought out the victims,
picked them up under false pretenses, and drove them to is olated areas away from help.” 2
The district court further found that the allegations do not demonstrate that E.M.H.
committed the acts under duress, acted in self-defense, or was a less culpable actor among
many. And the certification study also concluded that this factor weighed in favor of adult
certification. We see no abuse of discretion by the district court.
E.M.H. next argues that the district court abused its discretion by giving “undue
weight” to his prior record of delinquency. A “prior record of delinquency” encompasses
both adjudicated violations and records of petitions to juvenile court. In re Welfare of
N.J.S., 753 N.W.2d 704, 710 (Minn. 2008). The district court may consider pending
petitions in consideration of the child’s prior record of delinquency. See In re Welfare of

2 Because E.M.H. knew both of his victims, E.M.H. argues that the district court clearly
erred by stating that he sought out his victims under false pretenses. But both petitions
contain allegations that, although E.M.H. was not a stranger to the victims, E.M.H. sought
them out via messaging systems, convinced them to accompany him in his vehicle, then
brought them to isolated locations that were different than where they believed they were
going. These allegations support a finding that E.M.H. sought the victims out under false
pretenses. Moreover, we note that first-degree criminal sexual conduct is in no way any
less severe when an alleged perpetrator knows or is familiar with the victim.

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K.A.P., 550 N.W.2d 9, 12 (Minn. App. 1996) (concluding that district court did not err by
considering pending charges), review denied (Minn. Aug. 20, 1996).
The district court found that “a juvenile presumed to have committed two sexual
assaults with force on two separate victims on two separate occasions presents a public
safety risk.” Although E.M.H. argues that the absence of any other criminal history shows
that he does not present a risk to public sa fety, t he district court acted well within its
discretion in finding that the allegations in the two pending petitions demonstrated a public-
safety risk.
E.M.H. next argues that the district court clearly erred by finding that he would not
be successful in future treatment. “[A] child’s programming history . . . broadly refers to
programming history consisting of a specialized system of services, opportunities, or
projects designed to meet a relevant behavioral or social need of the child.” J.H., 844
N.W.2d at 39. The district court noted that the certification study concluded that E.M.H.
“has denied delinquent/criminal involvement in each of the events in therapy sessions and
therefore an engaged or therapeutica lly successful outcome in a juvenile sex offender
treatment program as a delinquency matter is at best questionable.” Although E.M.H.
argues that the district court “ignored all the positive evidence of E.M.H.’s successes and
capabilities and drew its own negative conclusion ,” the district court acted within its
discretion in finding that this factor weighed in favor of adult certification.
E.M.H. next argues that the district court abused its discretion in finding that EJJ
programming was not appropriat e to address the offenses , a finding contrary to the
recommendation of the probation officer who prepared the certification study. We note

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that the district court is not required to adopt the report or recommendation of a probation
agent and is not obligated to specifically explain its reasons for rejecting the ultimate
recommendation of a probation agent. Even so, here the district court independently
reviewed and weighed the available EJJ placements and programming and concluded that
they were not adequate to address the severity of the sex offenses set forth in the petitions.
The district court specifically found that “public safety is not served by having a limited
amount of time to work with and monitor an individual who for the purposes of this Order
is presumed to have committed sexual assault with force on two separate victims.” To that
end, while the certification study included the results of an evaluation regarding the risk of
general criminal re -offense, the evaluation did no t include the results of a psychosexual
evaluation or any other evaluation of E.M.H. regarding his risk to re-offend in a sex specific
nature.3 We see no abuse of discretion by the district court in its exercise of judgment
regarding its assessment of pro gramming or rejection of the recommendation of the
probation agent.
E.M.H. argues that the district court abused its discretion in not considering the
options available to him in EJJ. We disagree. The district court expressly set forth the
significant difference between sentences for these offenses in adult court, including the
potential for a 30-year probationary period, and EJJ, with a maximum probationary period
of approximately three years given the age of E.M.H . The district court did not abuse it s

3 E.M.H. noted at oral argument that a psychosexual evaluation had been completed, but
neither the evaluation itself nor a description of the results of the evaluation are included
in the record.

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discretion in concluding that no adequate punishment or rehabilitation is available to
E.M.H. in EJJ and that public safety is best served by adult certification.
Finally, E.M.H. argues that the district court abused its discretion by not considering
evidence of mitigating factors. The record shows that E.M.H. is a good student with no
criminal history other than the instant petitions and that he benefits from the support of his
family. Although the district court could have acknowledged the evidence of mitigating
factors, it was not required to address each of the six statutory factors in its adult
certification order. See J.H., 844 N.W.2d at 37 (explaining findings of fact that are required
in a presumptive certification case).
Accordingly, E.M.H. did not meet his burden of establishing, through clear and
convincing evidence, that retaining the proceeding s in the juvenile court serves public
safety. Because we find no abuse of discretion by the district court in its order for adult
certification and no clear error in the district court’s finding that public safety will be best
served by adult certification, we affirm the certification order in both cases.
Affirmed.