In re Interest of William E.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/27/2020 08:09 AM CDT




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                             Nebraska Court of Appeals Advance Sheets
                                  29 Nebraska Appellate Reports
                                         IN RE INTEREST OF WILLIAM E.
                                               Cite as 29 Neb. App. 44




                                  In re Interest of William E., a child
                                          under 18 years of age.
                                     State of Nebraska, appellee, v.
                                          William E., appellant.
                                                    ___ N.W.2d ___

                                        Filed October 27, 2020.   No. A-20-316.

                 1. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. An appel-
                    late court reviews a juvenile court’s decision to transfer a juvenile
                    offender’s case to county court or district court de novo on the record
                    for an abuse of discretion.
                 2. Juvenile Courts: Appeal and Error. When the evidence is in conflict,
                    an appellate court may give weight to the fact that the lower court
                    observed the witnesses and accepted one version of the facts over
                    the other.
                 3. Courts: Juvenile Courts: Jurisdiction. When the prosecution seeks to
                    transfer a juvenile offender’s case to criminal court, the juvenile court
                    must retain the matter unless a preponderance of the evidence shows
                    that the proceeding should be transferred to the county court or district
                    court. The prosecution has the burden by a preponderance of the evi-
                    dence to show why such proceeding should be transferred.
                 4. Courts: Juvenile Courts: Jurisdiction: Public Health and Welfare.
                    Neb. Rev. Stat. § 43-276 (Supp. 2019) sets forth 15 factors for a juvenile
                    court to consider in making the determination of whether to transfer a
                    case to county court or district court. The same factors are considered
                    when determining whether to transfer a case to juvenile court. The
                    court need not resolve every factor against the juvenile, and there are
                    no weighted factors and no prescribed method by which more or less
                    weight is assigned to a specific factor. It is a balancing test by which
                    public protection and societal security are weighed against the practical
                    and nonproblematical rehabilitation of the juvenile.
                 5. Courts: Juvenile Courts: Jurisdiction. While a review of all of the
                    factors is not required, it is preferable that a trial court or a juvenile
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            Nebraska Court of Appeals Advance Sheets
                 29 Nebraska Appellate Reports
                        IN RE INTEREST OF WILLIAM E.
                              Cite as 29 Neb. App. 44

       court refer to all the statutory considerations set forth in Neb. Rev. Stat.
       § 43-276 (Supp. 2019) in its order.
 6.    ____: ____: ____. In regard to the “best interests of the juvenile,” per
       Neb. Rev. Stat. § 43-276(1)(f) (Supp. 2019), every juvenile’s best inter-
       ests would be better served by attempting rehabilitation in the juvenile
       court system rather than being sentenced to a term of imprisonment in
       the adult corrections system.
 7.    Courts: Juvenile Courts: Jurisdiction: Public Health and Welfare. It
       is not a matter of the quantity of factors favoring retention or transfer of
       a juvenile offender’s case. Rather, the test requires consideration of all
       the factors in light of the evidence presented, followed by a balancing of
       (1) the factors which support retaining the case in the juvenile court for
       the practical and nonproblematical rehabilitation of the juvenile against
       (2) the factors which support transferring the case to county or district
       court in the interest of public protection and societal security.
 8.    ____: ____: ____: ____. A trial court must balance a juvenile’s amenabil-
       ity to complete rehabilitation by age 19 against the public’s safety in the
       event that rehabilitation fails or requires more time than anticipated.
 9.    Courts: Juvenile Courts: Jurisdiction. The trial court’s or juvenile
       court’s decision regarding the transfer of a juvenile offender’s case car-
       ries the consequences that if the decision is wrongly made, the court
       has either missed an opportunity to rehabilitate a juvenile outside the
       negative influences of adult incarceration or failed to adequately incar-
       cerate a potentially dangerous juvenile who will go on to commit further
       violent crimes.

  Appeal from the County Court for Adams County:
Michael O. Mead, Judge. Reversed and remanded for further
proceedings.
   Kelsey Helget, Assistant Adams County Public Defender,
for appellant.
  Cassie L. Baldwin, Deputy Adams County Attorney, for
appellee.
      Pirtle, Bishop, and Welch, Judges.
      Pirtle, Judge.
                       INTRODUCTION
  William E. appeals an order of the county court for Adams
County, sitting as a juvenile court, which transferred his case
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                 IN RE INTEREST OF WILLIAM E.
                       Cite as 29 Neb. App. 44

to county court. Based upon our de novo review, we conclude
the juvenile court abused its discretion in granting the transfer
of the case to county court. We therefore reverse the juvenile
court’s order granting the State’s motion to transfer the case to
county court, and we remand the cause for further proceedings
in juvenile court.

                        BACKGROUND
   On April 1, 2020, the State filed a petition in the county
court for Adams County, sitting as a juvenile court, alleging
William was a juvenile within the meaning of Neb. Rev. Stat.
§ 43-247(2) (Reissue 2016) because he had committed the
offense of third degree domestic assault against a pregnant
woman, a Class IV felony offense. The victim was his girl-
friend. William was 17 years old at the time of the offense. The
State simultaneously filed a motion to transfer William’s case
from juvenile court to county court.
   The juvenile court conducted a transfer hearing. The State
offered three exhibits into evidence, as well as the testimony of
Mikki Schoone, a child and family services specialist with the
Nebraska Department of Health and Human Services.
   Schoone testified that William was born in July 2002, mak-
ing him 17 years old at the time of the hearing. He was placed
in the State’s custody on March 30, 2020, and Schoone con-
ducted a safety assessment, which was offered into evidence
as exhibit 3. Schoone testified that William’s mother lives in
El Salvador and that his father is deceased. William had no
legal guardian when he was placed in the State’s custody.
Schoone learned that there was guardianship paperwork pre-
pared for William’s aunt to become his legal guardian, but the
paperwork had not been filed. William had been living with his
pregnant girlfriend. The age of the girlfriend is unclear from
the record. Schoone testified that William’s girlfriend was 20
years old, but exhibit 2 indicates she was 23 years old at the
time of the incident.
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

   Schoone testified that William was not enrolled in school and
had not been enrolled in high school since September 2019. At
that time, William’s uncle “signed him out,” telling the school
that William was going to work. Schoone believed that William
was employed at the time of the hearing, working for different
roofing companies. The only prior law violation Schoone found
was a failure to have an operator’s license on him.
   The safety assessment, exhibit 3, states that a Hastings,
Nebraska, police officer informed Schoone that William was
arrested for third degree domestic assault after his pregnant girl-
friend went to a hospital with a broken nose. William and his
girlfriend had been arguing, and he pushed her on the bed. The
girlfriend then grabbed William’s phone and broke it. William
then pushed her down and started punching her in the face.
   Exhibit 1 was a juvenile intake summary prepared by a pro-
bation officer, documenting her intake of William on March
30, 2020, after he was taken into custody. William told her
that he had been living with his girlfriend for 2 weeks and that
neither he nor his girlfriend were employed at the time. Prior
to living with his girlfriend in Hastings, he lived with his aunt
in Schuyler, Nebraska.
   In regard to the alleged assault, the probation officer stated
that she was told that William’s girlfriend, who was 15 weeks
pregnant, went to the hospital to be examined and had a
bloody nose. William’s girlfriend had reported to an officer
that William had been angry about her contacting an old boy-
friend, so he was outside talking to another woman. William’s
girlfriend reportedly got mad and broke William’s phone,
which then angered him. William allegedly grabbed his girl-
friend’s throat, pushed her on the bed, and punched her in
the face.
   Exhibit 2 was an “Affidavit of Warrantless Custody of
Juvenile,” prepared by an officer of the Hastings Police
Department after he took William into custody. The officer
stated in the affidavit that he spoke with William’s girlfriend
at the hospital after the alleged assault and that she told him
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

William had been talking to another woman on his phone and
she told him to go to bed. William started getting aggressive
with her and “was cussing at her, calling her vulgar names.”
William grabbed her by the neck and pushed her on the bed,
so she scratched him on the arm to get him off. She then took
William’s phone and broke it. William got mad, threw her on
the bed, and punched her in the face about four times.
   Exhibit 2 also stated that the officer spoke with William,
who agreed that his girlfriend had been mad at him for talking
to another woman on the phone. His girlfriend then took his
phone and broke it. William told the officer that his girlfriend
started pushing and hitting him, so he hit her back.
   The officer further stated in exhibit 2 that William’s girl-
friend’s nose was swollen and was starting to bruise. She also
had a bruise on her left breast that she stated William caused a
couple days earlier. William had a scratch on his left forearm
approximately 4 inches long.
   The juvenile court entered an oral pronouncement from
the bench granting the State’s motion to transfer the matter to
county court. The court subsequently entered a journal entry
granting the State’s motion.

                  ASSIGNMENT OF ERROR
   William assigns that the juvenile court erred in finding that
the State presented sufficient evidence to support a decision to
transfer his case to county court.

                   STANDARD OF REVIEW
   [1,2] An appellate court reviews a juvenile court’s decision
to transfer a juvenile offender’s case to county court or district
court de novo on the record for an abuse of discretion. In re
Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).
When the evidence is in conflict, an appellate court may give
weight to the fact that the lower court observed the witnesses
and accepted one version of the facts over the other. Id.
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

                             ANALYSIS
   [3] When the prosecution seeks to transfer a juvenile offend-
er’s case to criminal court, the juvenile court must retain the
matter unless a preponderance of the evidence shows that the
proceeding should be transferred to the county court or district
court. Id. See Neb. Rev. Stat. § 43-274(5) (Supp. 2019). The
prosecution has the burden by a preponderance of the evidence
to show why such proceeding should be transferred. Id.
   [4] Neb. Rev. Stat. § 43-276 (Supp. 2019) sets forth 15 fac-
tors for a juvenile court to consider in making the determination
of whether to transfer a case to county court or district court.
The same factors are considered when determining whether
to transfer a case to juvenile court. In re Interest of Steven
S., supra. The court need not resolve every factor against the
juvenile, and there are no weighted factors and no prescribed
method by which more or less weight is assigned to a specific
factor. See id. Rather, it is a balancing test by which public pro-
tection and societal security are weighed against the practical
and nonproblematical rehabilitation of the juvenile. Id.
   The 15 factors set forth in § 43-276(1) for the court to con-
sider are as follows:
      (a) The type of treatment such juvenile would most likely
      be amenable to; (b) whether there is evidence that the
      alleged offense included violence; (c) the motivation for
      the commission of the offense; (d) the age of the juvenile
      and the ages and circumstances of any others involved
      in the offense; (e) the previous history of the juvenile,
      including whether he or she had been convicted of any
      previous offenses or adjudicated in juvenile court; (f)
      the best interests of the juvenile; (g) consideration of
      public safety; (h) consideration of the juvenile’s ability
      to appreciate the nature and seriousness of his or her
      conduct; (i) whether the best interests of the juvenile and
      the security of the public may require that the juvenile
      continue in secure detention or under supervision for a
      period extending beyond his or her minority and, if so,
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                 IN RE INTEREST OF WILLIAM E.
                       Cite as 29 Neb. App. 44

      the available alternatives best suited to this purpose; (j)
      whether the victim or juvenile agree to participate in
      restorative justice; (k) whether there is a juvenile pre-
      trial diversion program established pursuant to sections
      43-260.02 to 43-260.07; (l) whether the juvenile has
      been convicted of or has acknowledged unauthorized use
      or possession of a firearm; (m) whether a juvenile court
      order has been issued for the juvenile pursuant to section
      43-2,106.03; (n) whether the juvenile is a criminal street
      gang member; and (o) such other matters as the parties
      deem relevant to aid in the decision.
   William argues that the State failed to produce sufficient
evidence to meet its burden to show that the case should be
transferred to county court. Before addressing the evidence
presented by the State and the factors set forth above, we first
note that the court made a brief oral pronouncement from the
bench following a hearing that lasted only 24 minutes, stating
the factors it found to weigh in favor of transferring the case
to county court. It then entered the following journal entry:
“Court finds that, based on JV43-276, no treatment available
and this offense was violent, public safety as well, and old
enough to appreciate serious [sic] of the offense.”
   [5] We also note there were three exhibits offered and
received into evidence, but the record does not indicate when
the court would have reviewed those exhibits prior to its oral
pronouncement at the end of the hearing. The court did not
explain in its oral pronouncement or its journal entry why it
found certain factors favored transferring the case to county
court, nor did it review all the factors. We would encourage
courts to take the time to review the evidence and then make
a more thorough written order analyzing the relevant factors
as set out in § 43-276, which ensures a meaningful review by
an appellate court. While a review of all of the factors is not
required, it is preferable that a trial court or a juvenile court
refer to all the statutory considerations set forth in § 43-276
in its order. See State v. Tyler P., 299 Neb. 959, 911 N.W.2d
260 (2018).
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

   We now turn to the question of whether the State met its
burden to prove by a preponderance of the evidence why the
proceeding should be transferred to county court. See In re
Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).

Factors Favoring Transfer.
   When the juvenile court orally pronounced its decision from
the bench, it stated that it found 6 of the 15 factors set forth in
§ 43-276(1) weighed in favor of transferring the case: the type
of treatment the juvenile would be amenable to, § 43-276(1)(a);
the alleged offense included violence, § 43-276(1)(b); the moti-
vation for the commission of the offense, § 43-276(1)(c); the age
of the juvenile, § 43-276(1)(d); public safety, § 43-276(1)(g);
and the juvenile’s ability to appreciate the nature and serious-
ness of his conduct, § 43-276(1)(h).
   We agree with the juvenile court in regard to three of the six
factors it found favored transferring the case. First, we agree
that the alleged offense included violence. See § 43-276(1)(b).
William does not dispute that third degree domestic assault of
a pregnant woman is a crime of violence. The evidence showed
that William grabbed his girlfriend by the neck, pushed her
onto the bed, and punched her in the face about four times.
William admitted to hitting her. This factor favors transferring
the case to county court.
   Second, we agree with the court that “the motivation for the
commission of the offense” factor weighed in favor of transfer-
ring the case. See § 43-276(1)(c). William’s motivation for the
offense was based on his girlfriend’s breaking his phone dur-
ing a dispute about William talking to another woman on the
phone. His reaction was to push his pregnant girlfriend onto
the bed and punch her in the face multiple times.
   Third, we agree with the court that William’s age favored
transferring the case. See § 43-276(1)(d). At the time of the
hearing in April 2020, William was 17 years 9 months old, giv-
ing the juvenile court jurisdiction over William for just over a
year before he turned 19 years old.
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                 IN RE INTEREST OF WILLIAM E.
                       Cite as 29 Neb. App. 44

   The State also contends that another factor weighed in
favor of transferring the case to county court, with which we
agree: “such other matters as the parties deem relevant to aid
in the decision.” See § 43-276(1)(o). William was living as
an adult at the time of the alleged offense. His mother lives
in El Salvador, and his father is deceased. Further, he had no
guardian providing care for him. He was living independently
as an adult with his girlfriend, who was at least 20 years old
and pregnant with William’s child. William was not enrolled in
school, and Schoone believed he was working. We agree that
these are appropriate and relevant considerations.

Factors Favoring Retention.
   We disagree with the juvenile court in regard to the three
other factors it found supported transferring the case, and
we find that those factors actually favor the juvenile court’s
retaining the case. Those factors are: the type of treatment the
juvenile would be amenable to, § 43-276(1)(a); public safety,
§ 43-276(1)(g); and the juvenile’s ability to appreciate the
nature and seriousness of his conduct, § 43-276(1)(h).
   First, in regard to “[t]he type of treatment such juvenile
would most likely be amenable to,” the juvenile court stated
that there would not be adequate treatment available to William
in the juvenile court. See § 43-276(1)(a). The court did not
explain how it arrived at this conclusion, and there was no
evidence presented to support it. There was no evidence pre-
sented as to what type of treatment William would or would
not be responsive to. He had never been involved in the juve-
nile system before, so there was no indication as to how he
would respond to services and programs offered in the juvenile
system. There was no evidence as to what type of juvenile
services existed and why those services would not be available
or would not work for William, and no evidence was presented
to show that William could not be rehabilitated by the time he
turned 19 years old.
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

   Second, we find that the “public safety” factor weighs in favor
of the juvenile court’s retaining the case. See § 43-276(1)(g).
Again, the court did not explain its reasoning for coming to
the opposite conclusion. There was no evidence presented by
the State to show that William posed a public safety risk. The
incident at issue arose from a domestic dispute between him
and his girlfriend; there was no indication that the public was
at risk of harm. In addition, exhibit 1 showed that the results
of a scoring tool used by probation “indicated release the
youth without restriction,” indicating William did not pose a
safety risk.
   Third, in regard to “the juvenile’s ability to appreciate the
nature and seriousness of his or her conduct,” there was no
evidence presented to show that William could or could not
appreciate the nature and seriousness of his conduct. See
§ 43-276(1)(h).
   In addition to the three factors discussed above, there are
other factors which favor retention by the juvenile court. The
“previous history of the juvenile” factor, see § 43-276(1)(e),
weighs in favor of retention. There was no evidence that
William had any criminal convictions or that he had ever
been adjudicated previously in juvenile court. The only prior
law violation William had was a failure to have an operator’s
license on him. In addition, there is no evidence that “[William]
has been convicted of or has acknowledged unauthorized use
or possession of a firearm,” see § 43-276(1)(l), or that he is a
“criminal street gang member,” see § 43-276(1)(n).
   [6] In regard to the “best interests of the juvenile,”
§ 43-276(1)(f), as this court has recently stated, every juve-
nile’s best interests would be better served by attempting
rehabilitation in the juvenile court system rather than being
sentenced to a term of imprisonment in the adult corrections
system. See State v. Esai P., 28 Neb. App. 226, 942 N.W.2d
416 (2020). And as previously pointed out, there is no evidence
to indicate William would not be amenable to rehabilitation in
the juvenile court system.
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

   There was also no evidence presented in regard to “whether
the best interests of the juvenile and the security of the public
may require that the juvenile continue in secure detention or
under supervision for a period extending beyond his or her
minority and, if so, the available alternatives best suited to
this purpose,” see § 43-276(1)(i). The State did not show that
William would require secure detention or supervision for a
period extending beyond his minority. As previously stated,
there was no evidence that 1 year would not be enough time for
William to be rehabilitated in the juvenile system.
   The remaining factors that we have not discussed are not
present and are neutral: “whether the victim or juvenile agree to
participate in restorative justice,” see § 43-276(1)(j); “whether
there is a juvenile pretrial diversion program established pursu-
ant to sections 43-260.02 to 43-260.07,” see § 43-276(1)(k);
and “whether a juvenile court order has been issued for the
juvenile pursuant to section 43-2,106.03,” see § 43-276(1)(m).
Balancing Public Safety Against
Rehabilitation of Juvenile.
   [7-9] As previously stated, it is the State’s burden by a
preponderance of the evidence to show why such proceeding
should be transferred. The State’s evidence focused primar-
ily on the incident at issue, rather than the factors set forth in
§ 43-276(1). Accordingly, the evidence only supports a few
factors that weigh in favor of the State’s motion to transfer the
case to county court. However, it is not a matter of the quan-
tity of factors favoring retention or transfer. Rather, the test
requires consideration of all the factors in light of the evidence
presented, followed by a balancing of (1) the factors which
support retaining the case in the juvenile court for the practi-
cal and nonproblematical rehabilitation of the juvenile against
(2) the factors which support transferring the case to county or
district court in the interest of public protection and societal
security. See State v. Esai P., supra. In other words, “This
means that a trial court must balance a juvenile’s amenabil-
ity to complete rehabilitation by age 19 against the public’s
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        Nebraska Court of Appeals Advance Sheets
             29 Nebraska Appellate Reports
                  IN RE INTEREST OF WILLIAM E.
                        Cite as 29 Neb. App. 44

safety in the event that rehabilitation fails or requires more
time than anticipated.” State v. Leroux, 26 Neb. App. 76, 118,
916 N.W.2d 903, 929 (2018). The trial court’s or juvenile
court’s decision carries the consequences that if the decision
is wrongly made, we have either missed an opportunity to
rehabilitate a juvenile outside the negative influences of adult
incarceration or failed to adequately incarcerate a potentially
dangerous juvenile who will go on to commit further violent
crimes. See id.
   In this instance, the juvenile court failed to conduct the bal-
ancing test described above. Our review of the record reveals
that the State failed to present any evidence that William
could not be successfully rehabilitated before reaching age 19,
despite the fact that he was almost 18 years old at the time of
the transfer hearing. William has not been involved with the
juvenile system before, so there was no indication that William
would not be amenable to juvenile services. In addition, based
on the evidence presented, William did not pose a public safety
risk. He had no prior criminal history, no prior juvenile adju-
dications, and no history of violent behavior, other than the
present offense. Accordingly, there was insufficient evidence
for the juvenile court to properly weigh William’s practical and
nonproblematical rehabilitation under the juvenile court’s juris-
diction against those factors favoring transfer to adult court
in the interest of public safety and protection. Absent such
evidence and consideration, we must conclude the juvenile
court abused its discretion in granting the transfer of the case
to county court.
                        CONCLUSION
   For the reasons set forth herein, we reverse the juvenile
court’s order granting the State’s motion to transfer the case to
the county court and remand the cause for further proceedings
in the juvenile court.
                               Reversed and remanded for
                               further proceedings.
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