In the Matter of the Welfare of: X. L. H.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1449

In the Matter of the Welfare of: X. L. H.

Filed May 23, 2022
Affirmed
Johnson, Judge

Washington County District Court
File No. 82-JV-21-266

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant X.L.H.)

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

Pete Orput, Washington Coun ty Attorney, Tricia A. Loehr, Assistan t County Attorney,
Stillwater, Minnesota (for respondent State of Minnesota)

Considered and decided by Slieter, Pr esiding Judge; Johnson, Judge; and Smith,
John, Judge.

NONPRECEDENTIAL OPINION
JOHNSON, Judge
Two months before his 18th birthday, X.L. H. participated in a shoot-out that
resulted in the death of a 14-year-old boy. He is charged with aiding and abetting second-
degree murder, aiding and abe tting second-degree assault w ith a dangerous weapon, and
being an ineligible person in possession of a firearm. The juvenile court granted the state’s

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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motion to certify X.L.H. for prosecution as an a dult. We conclude that the juvenile court
did not clearly err in its findings of fact an d did not abuse its discretion by granting the
certification motion. Therefore, we affirm.
FACTS
The juvenile-delinquency petition alleges the following facts, which we assume to
be true for purposes of the state’s certification motion.
On the evening of June 5, 2021, X.L.H. attended a graduation party at a home in the
city of Woodbury. At approximately 10:30 p.m., he and two others (23-year-old E.D. and
19-year-old J.T.) confronted another group of young people, which included 14-year-old
D.E. D.E. and his friends left the party. D.E. told his stepfather, K.D., about the
confrontation. K.D. encouraged D.E. and his fri ends to return to the party so that X.L.H.
and J.T. “would stop messing with them.”
K.D. drove his vehicle to the party, wh ile D.E. and his friends followed closely
behind in a different vehicle. When they arrived at the party, E.D., J.T., and X.L.H. were
standing outside, near a car that was parked on the street. K.D. fired three or four rounds
at them through the front pa ssenger-side window of his ve hicle. X.L.H. responded by
firing five shots at K.D.’s and D.E.’s vehicles and 14 “wild” shots to demonstrate superior
firepower. Other persons also fired shots. Investigating officers later found approximately
40 bullet casings at the scene as well as bullet holes in several homes and vehicles near the
scene. D.E. was struck by a bullet that passed through his right lung and his heart. He was
pronounced dead at a nearby hospital at 11:12 p.m.
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The state charged X.L.H. with one count of aiding and abetting s econd-degree
murder, in violation of Minn. Stat. § 609.19, su bd. 2(1) (2020); four counts of aiding and
abetting second-degree assault with a dangerous weapon, in violation of Minn. Stat.
§ 609.222, subd. 1 (2020); and one count of be ing an ineligible person in possession of a
firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2020).
The state moved to certify X.L.H. for prosecution as an adult. In September 2021,
the juvenile court held an evidentiary hearing on the certification motion. At the outset of
the hearing, the juvenile court found that th e charges were supported by probable cause.
The state called three witnesses. Daniel Johnson, Psy.D., L.P., testified along the lines of
his court-ordered psychological-evaluation report, which was admitted into evidence as an
exhibit. Johnson testified that X.L.H. had one of the “most significant trauma histories [he
had] seen.” Johnson testified that X.L.H. exhibited “a high risk ” for committing future
violence, and he recommended th at X.L.H. be certified as an adult. Fred Bernard, a
juvenile probation officer, testified along the lines of his court-ordered certification-study
report, which was admitted into evidence as an exhibit. Bernard recommended that X.L.H.
be certified as an adult. Paul Kroshus, a police detective testifie d generally about his
investigation of the incident underlying the charges.
X.L.H. called two witnesses. Gerald Henkel-Johnson, Psy.D., L.P., testified along
the lines of his psychological-evaluation report, which was admitted in to evidence as an
exhibit. In his written report, Henkel-Johnson stated that, without treatment, X.L.H. has a
high likelihood of offending again and that his “incarceration may provide for public safety
during the time he is in a secure setting.” But Henkel-Johnson testified that X.L.H. should
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be tried as a juvenile because of his suscep tibility to the negative in fluence of adults and
significant need for trauma-specific programming, which Henkel-Johnson believed might
not be available to X.L.H. at an adult prison. Lieutenant Adam Blaschko, program director
at the Minnesota Correctional Facility at Re d Wing (MCF-RW), testified that MCF-RW
previously has accepted person s with extended-jurisdiction- juvenile (EJJ) designations
based on loss-of-life offenses and that those persons generally were admitted to MCF-RW
for 24 months or more and completed at le ast 21 months of progr amming. Lieutenant
Blaschko also testified that MCF-RW has a voluntary evidence-based trauma-and-grief
program designed “to reduce post-traumatic emotional behavior activity.”
In October 2021, the juvenile court filed an order in which it granted the state’s
certification motion. X.L.H. appeals.
DECISION
X.L.H. argues that the juvenile court erred by granting the state’s motion to certify
him for prosecution as an adult.
As a general rule, juveniles accused of cr iminal conduct are tried in the juvenile
division of the district court. Minn. Stat. § 260B.101, subd. 1 (2020). But a juvenile who
is 14 years old or older and is charged with an offense that would be a felony if committed
by an adult may be certified for prosecution as an adult in district court. Minn. Stat.
§ 260B.125, subd. 1 (2020). If the allege d offense would result in a presumptive
commitment to prison for an adult, and if the juvenile was 16 or 17 years of age at the time
of the alleged offense, adult certification is presumed. Id., subd. 3.
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“In presumptive-certification proceedings, the state bears the burden of showing that
(1) the juvenile was 16 or 17 years old, and (2) the alleged offense carries a presumptive
prison sentence or that it is a felony offense involving a firearm.” In re Welfare of P.C.T.,
823 N.W.2d 676, 681 (Minn. App. 2012), rev. denied (Minn. Feb. 19, 2013). If the state
satisfies its initial burde n, and if there is probable caus e to support the allegations, the
burden shifts to the juvenile to prove “by clear and convincing evidence that retaining the
proceeding in the juvenile cour t serves public safety.” Mi nn. Stat. § 260B.125, subd. 3;
see also Minn. R. Juv. Delinq. P. 18 .06, subd. 1. If the juven ile satisfies that burden of
proof, the juvenile court retains jurisdiction over the case as an EJJ case until the juvenile’s
21st birthday. Minn. Stat. §§ 260B.125, subd. 8(b), 260B.130, subd. 1(1) (2020); Minn.
R. Juv. Delinq. P. 19.01, subd. 2; In re Welfare of J.H., 844 N.W.2d 28, 35 (Minn. 2014).
But if the juvenile does not satisfy his burden of proof, “the court shall certify the
proceeding.” Minn. Stat. § 260B.125, subd. 3.
In determining whether public safety is served by certification, a juvenile court must
consider the following six public-safety factors:
(1) the seriousness of the alleged offense in terms of
community protection, including the existence of any
aggravating factors recognized by the Sentenci ng Guidelines,
the use of a firearm, and the impact on any victim;

(2) the culpability of th e 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 re cord of delinquency;

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(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. A juvenile court must give greater weight to the first and third factors. Id. If
“[a] juvenile court orders certification, it is not required to specifically address each of the
six statutory factors in its written order” but must demonstrate that it “carefully considered
its decision.” J.H., 844 N.W.2d at 37 (quotation omitted).
A juvenile court “has considerable latitude in deciding whether to certify a case for
adult prosecution.” P.C.T., 823 N.W.2d at 681 (quotation omitted). This court applies a
clear-error standard of review to a juvenile court’s findings of fact concerning the six
public-safety factors. J.H., 844 N.W.2d at 34-35. We apply an abuse-of-discretion
standard of review to a juve nile court’s balancing of the factors and its ultimate decision
on a certification motion. In re Welfare of N.J.S., 753 N.W.2d 704, 710-11 (Minn. 2008);
In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn. App. 2000).
In this case, the juvenile court found that X.L.H. did not rebut the presumption of
certification and that each of the six statutor y factors supported certification. X.L.H.
challenges the juvenile court’s findings on four of the six factors—the second, fourth, fifth,
and sixth—and urges the court to reverse th e juvenile court’s gr ant of the state’s
certification motion.

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A. Second Factor: Culpability
The juvenile court noted that it was aware of X.L.H.’s significant traumatic history
and diagnosis of post-traumatic stress disorder but nonetheless found that there were “no
mitigating factors recognized by the sentencing guidelines” to consider. The juvenile court
noted that Johnson, Henkel-Johnson, and Bernard testified that the second factor supports
certification.
X.L.H. contends that the juvenile cour t erred by not finding that two mitigating
factors are present: his “mental impairment” due to his history of trauma and the fact that
he was not the initial aggressor. Each of th ese mitigating factors is mentioned in the
sentencing guidelines, which are explicitly referenced in th e second public-safety factor.
See Minn. Stat. § 260B.125, subd. 4(2); Minn. Sent. Guidelines 2.D.3.a.(3), (5) (2020).
With respect to the first part of X.L. H.’s contention, the supreme court has
interpreted the sentencing guidelines to provide that only an “extreme” mental impairment
may justify mitigation. State v. McLaughlin , 725 N.W.2d 703, 716 (Minn. 2007). The
evidence in this case does not indicate that X. L.H. has an extreme mental impairment.
Neither Johnson nor Henkel-J ohnson concluded that X.L. H.’s brain development was
impaired in a way that mitigated his culpability. See In re Welfare of H.B., 956 N.W.2d 7,
13-14 (Minn. App. 2021) (concluding that seco nd factor favored certification, in part
because witnesses did not testify that juven ile’s “brain development was impaired in a
manner that mitigat ed his culpability”), rev. granted (Minn. May 26, 2021). To the
contrary, both Johnson and He nkel-Johnson concluded that X.L. H. was fully culpable of
the charged offenses and that the second factor supported certification. Johnson’s report
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notes that X.L.H. himself stated during the investigation that he “should have left it alone,
shouldn’t have shot.” X.L.H.’s statement indicates that he was not suffering from an
extreme mental impairment.
With respect to the second part of X.L.H.’s contention, it is true that X.L.H. was not
the first person to fire a handgun. But th e petition alleges that the hostilities began when
X.L.H. and his friends confronted D.E. and his friends, and they brandished handguns
while doing so. In addition, X.L.H. esca lated the confrontation by firing 19 rounds,
including 14 “wild” rounds to show superior firepower.
In light of the evidence in the record, we cannot concl ude that X.L.H. proved by
clear and convincing evidence that there are “substantial grounds” that “tend to excuse or
mitigate” his culpability. See Minn. Stat. § 260B.125, subd. 3; Minn. Sent. Guidelines
2.D.3.a(5). Thus, the juvenile court did not clearly err by finding that the second factor
supports certification.
B. Fourth Factor: Programming History
The juvenile court found that, despite having participated in a variety of
programming ranging from community-based services to long-term residential placement,
X.L.H. “has continued to be involved in serious felony-level offenses.” The juvenile court
stated, “It simply is not reasonable to expect, at this point, that additional programming in
a juvenile setting will appreciably reduce the lik elihood of re-offense or the risk to the
public.”
X.L.H. contends that the juvenile court e rred by not considering that his previous
programming was not trauma-specific and, thus, not sufficiently targeted to his needs. It
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is true that Johnson, Henkel-Johnson, and Bernard testified that X.L.H. had never received
trauma-specific therapy and that he likely w ould benefit from it. Bu t all three of those
witnesses also acknowledged that, despite extensive prio r programming, X.L.H. has
continued to commit violent crimes in the community. The record includes evidence that
X.L.H. also is charged with serious offenses arising from two other incidents. First, in
February 2021, five days after being released from a long-term residential program, X.L.H.
allegedly robbed a victim using a firearm and shot at the victim when the victim attempted
to flee. Second, on the day before the shooting in this case, X.L.H. allegedly used a firearm
to threaten other persons inside a restaurant. The evidence in the record does not compel
the conclusion that X.L.H. proved by clear and convincing evidence that his programming
history supports prosecution as a juvenile.
Thus, the juvenile court did not clearly err by finding that the fourth factor supports
certification.
C. Fifth and Sixth Factors

The fifth and sixth factors—the adequacy of punishment or programming in the
juvenile system and the dispositional opt ions—often are cons idered together. See In re
Welfare of D.T.H., 572 N.W.2d 742, 745 (Minn. App. 1997), rev. denied (Minn. Feb. 19,
1998). The juvenile court noted that MCF- RW is the only juvenile program in which
X.L.H. has not previously been placed and that the juvenile-justic e system would have
jurisdiction over X.L.H. for only three years, until his 21st birthday. The juvenile court
stated that, in contrast, the adult-correctional system would allow “an extensive period of
incarceration and/or probation. ” The juvenile court found , “There is no adequate
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punishment available in the j uvenile justice system for a juvenile presumed guilty” of
X.L.H.’s pending charges. The juvenile court also found that the dispositional options in
the juvenile system are inadequate to protect public safety.
X.L.H. contends that effective rehabilitation, rather than length of incarceration, is
n e c e s s a r y t o e n s u r e t h a t h e d o e s n o t p o s e a continued threat to public safety. That
contention does not account for the juvenile court’s reasoning that only two or three years
of juvenile programming likel y would not be effective in rehabilitating X.L.H. The
juvenile court’s findings are supported by the record. Lieutenant Blaschko testified that, if
found delinquent, X.L.H. could expect a 24-month commitment at MCF-RW, with 21
months served in the institution and three months on furlough. Lieutenant Blaschko also
testified that MCF-RW’s trauma-specific programming is “voluntary.” The juvenile court
relied on that testimony by finding that the trauma-specific programming at MCF-RW is
voluntary and cannot be court-or dered. The evidence in th e record, including his prior
unsuccessful programming, the short period of time for additional programing, and the
elective nature of trauma-specific program ming, does not compel the conclusion that
X.L.H. proved by clear and co nvincing evidence that punishment or programming in the
juvenile system is adequate in light of the dispositional options.
Thus, the juvenile court did not clearly err by finding that the fifth and sixth factors
support certification.
D. Summary
As stated above, the first and third factor s receive “greater weight” than the other
four factors. Minn. Stat. § 26 0B.125, subd. 4. In analyzing the first factor, the juvenile
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court found that X.L.H.’s alle ged offenses are “extremely se rious” and “strongly favor”
adult certification. In analyzing the third factor, the juvenile court found that X.L.H. has a
criminal history that is “signi ficant in both scope and sever ity” and also “strongly favors
certification.” We have determined that the juvenile court did not clearly err in its findings
on the second, fourth, fifth, and sixth factors. See supra parts A, B, & C. Accordingly, all
six factors favor certification.
Thus, the juvenile court did not abuse its discretion by granting the state’s motion
to certify X.L.H. for prosecution as an adult.
Affirmed.