State v. Lu , 33 Neb. Ct. App. 45 ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/30/2024 09:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. LU
Cite as 33 Neb. App. 45State of Nebraska, appellee, v.
Peh B. Lu, appellant.
___ N.W.3d ___
Filed July 23, 2024. Nos. A-24-198, A-24-199.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
Error. A trial court’s denial of a motion to transfer a pending criminal
proceeding to the juvenile court is reviewed for an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Courts: Juvenile Courts: Jurisdiction. In conducting a hearing on a
motion to transfer a pending criminal case to juvenile court, the court
should employ a balancing test by which public protection and societal
security are weighed against the practical and nonproblematical reha-
bilitation of the juvenile.
4. ____: ____: ____. On a petition to transfer a criminal case to juve-
nile court, to retain the proceedings in district court, the court need
not resolve every statutory 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.
5. Courts: Juvenile Courts: Jurisdiction: Proof. In a motion to transfer a
criminal case to juvenile court, the burden of proving a sound basis for
retention lies with the State.
6. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. When rul-
ing on a motion to transfer a juvenile’s case, the trial court must make
a statement of its findings that provides sufficient specificity to permit
meaningful review by appellate courts.
7. Courts: Jurisdiction. While it is the better practice for a trial court to
refer to all the statutory factors governing a petition to transfer, the court
is not required to do so.
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Cite as 33 Neb. App. 458. Courts: Juvenile Courts: Jurisdiction: Proof. Because it is the State’s
burden to prove that a sound basis exists for retaining a case in the
district court, any statutory factor found not to favor retention should be
considered a factor that favors transfer to the juvenile court.
9. Courts: Juvenile Courts: Jurisdiction. A defendant’s young age by
itself does not support the transfer of a criminal case to the juve-
nile court.
10. Courts: Juvenile Courts: Jurisdiction: Evidence. When a district
court’s basis for retaining jurisdiction over a juvenile is supported by
appropriate evidence, it cannot be said that the court abused its discre-
tion in refusing to transfer the case to juvenile court.
11. ____: ____: ____: ____. The customary rules of evidence do not apply
in juvenile transfer hearings, and the district court must consider all the
evidence and reasons presented by both parties before issuing its ruling.
12. Appeal and Error. Harmless error jurisprudence recognizes that an
error is only prejudicial and requires reversal when, in light of the total-
ity of the record, the error influenced the outcome of the case.
Appeals from the District Court for Douglas County:
LeAnne M. Srb, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Bethany
R. Stensrud, and Hilary A. Drawz for appellant.
Michael T. Hilgers, Attorney General, and Erin E. Tangeman
for appellee.
Moore, Bishop, and Arterburn, Judges.
Arterburn, Judge.
I. INTRODUCTION
In this consolidated appeal, 17-year-old Peh B. Lu appeals
the order of the district court for Douglas County denying his
request to transfer the criminal proceedings against him to
the juvenile court. After reviewing the record, we conclude
that the evidence supported retention of these two cases in
the district court. Based on many factors, including Lu’s
need for supervision and rehabilitation beyond the age of
majority and the consideration of public safety, we conclude
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Cite as 33 Neb. App. 45that the district court did not abuse its discretion in denying
Lu’s motion to transfer these cases. We affirm the district
court’s order.
II. BACKGROUND
In November 2023, the State filed two cases against Lu in
the district court. In the first case, the State filed an informa-
tion charging Lu with two counts: (1) robbery and (2) crimi-
nal conspiracy to commit robbery, both Class II felonies. The
information indicated that the event which gave rise to these
charges occurred on July 15, 2023. In the second case, the
State filed an information charging Lu with three counts: (1)
robbery, (2) criminal conspiracy to commit robbery, and (3)
use of a deadly weapon (firearm) to commit a felony, a Class
IC felony. The information indicated that the event which
gave rise to these charges occurred on July 16, 2023. In July
2023, Lu was 16 years 2 months old, having been born in
May 2007.
In each case, Lu filed a motion requesting to transfer the
proceedings against him to the juvenile court pursuant to Neb.
Rev. Stat. § 29-1816 (Cum. Supp. 2022). On March 1, 2024,
a juvenile transfer hearing was held addressing both cases.
The evidence established that Lu is a Karen national who was
born in Thailand in a refugee camp. He has been in the United
States since he was a young child.
During the hearing, the State offered 23 exhibits into evi-
dence, including the following: police reports that gave rise
to Lu’s charges; various photographs, videos, social media
posts and messages collected during the investigation; Lu’s
criminal history and arrest records; certified copies of Lu’s
two prior, yet still active, juvenile case files and related police
reports; Lu’s juvenile intake summaries; a memorandum pre-
pared by Lu’s juvenile probation officer detailing the proba-
tion services Lu has received since August 2021; and infor-
mation regarding the services available at the Douglas County
Youth Center (Youth Center), the Nebraska Department of
Correctional Services, and the juvenile probation office.
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Cite as 33 Neb. App. 45Lu offered several exhibits into evidence as well. This
evidence included probation review reports, a letter detailing
Lu’s participation and progress in therapy services, Lu’s medi-
cal records, Boys Town progress reports, and various certifi-
cates and awards Lu received at Boys Town. Lu also offered
two exhibits that were not received by the court. Exhibit 36
is an affidavit from an assistant public defender regarding
immigration law. The assistant public defender avers in her
affidavit that she advised Lu of the potential immigration
consequences, including removal from the country, if he were
convicted of robbery or conspiracy to commit robbery. The
State objected to exhibit 36 on relevancy grounds, and the
court sustained the objection.
Lu also offered exhibit 37, which is a deposition of Colleen
Conoley, Ph.D., taken for a separate, unrelated case in 2014.
Conoley’s deposition includes testimony about child brain
development and the impact it has on children and their
behaviors. The State objected to exhibit 37, arguing that the
deposition was 10 years old, that the State had no basis to
determine whether the testimony was still accurate, and that
the deposition was irrelevant to the facts of this case. The dis-
trict court agreed and sustained the objection.
1. July 2023 Robberies
Officer Jessica Rich of the Omaha Police Department is a
robbery detective who, in the summer of 2023, was assigned
to investigate cases connected to the “ABZ” gang, other-
wise known as the Asian Boys Zone gang. The first case she
investigated involved a robbery perpetrated by three sus-
pects on July 15, 2023. The victim, Paul Kladstrup, reported
that he parked his vehicle near an ATM on Underwood
Avenue in Omaha, Nebraska. After exiting his own vehicle,
a white Hyundai pulled up behind him. The driver of the
Hyundai exited the vehicle and pointed a black handgun at
Kladstrup, forcing him to hand over his cash, which totaled
$62. Kladstrup observed the Hyundai’s front passenger
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Cite as 33 Neb. App. 45stand outside the Hyundai and the backseat passenger exit
the Hyundai and enter the driver’s seat of Kladstrup’s car.
Kladstrup said, “‘Don’t steal my car, please.’” After taking
Kladstrup’s money, the suspects returned to the Hyundai and
fled the scene. Kladstrup informed the police that the suspects
appeared to be young Hispanic males but that each suspect
was wearing a dark-colored hoodie with the hood cinched
tight, leaving only their eyes visible.
Rich identified suspects in the July 15, 2023, robbery
through her investigation of a separate robbery that occurred
on July 23. While investigating the July 23 robbery, Rich
obtained a search warrant for a suspect’s “Instagram account.”
While reviewing the account, Rich found a group chat con-
taining 23 other accounts. Rich obtained additional warrants
for each of those accounts. One of those accounts belonged
to Lu.
Rich reviewed the messages on Lu’s Instagram account.
She found a picture of Lu holding a liquor bottle and several
pictures of him holding firearms. Additionally, there were two
videos where Lu was shooting a firearm outdoors amongst
several other individuals, who also appeared to be minors.
Rich testified that in Lu’s messages, he admitted to steal-
ing ammunition from stores and encouraged others to do so
as well.
On July 15, 2023, the day of the robbery, Lu messaged
another party, A.K., asking to meet up. A.K. replied that he
would meet Lu at “‘the Walmart by northwest.’” Another
conversation between Lu and a third party, T.Y., occurred on
the same day. Lu instructed T.Y. to “‘go to Walmart.’” Rich
also found a separate conversation between T.Y. and A.K.
that occurred on July 15. T.Y. asked A.K. where he was, and
A.K. responded that he was “‘going to luski.’” T.Y. responded
that he was already with “‘Luski.’” Rich determined from the
numerous messages that Lu “was often referred to as ‘Luski.’”
Rich obtained and reviewed surveillance video from the
Walmart store closest to Northwest High School. The video
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Cite as 33 Neb. App. 45showed a white Hyundai Sonata and a dark gray Hyundai
Sonata enter the Walmart parking lot and park next to each
other for several minutes. Neither car had license plates, and
the white Hyundai had visible damage on the passenger side.
These vehicles were later found to have been reported stolen.
Rich also reviewed surveillance video from a gas station
located on Underwood Avenue. This video showed a white
Hyundai Sonata arrive and park near the ATM at 7:52 a.m.
Rich determined that this was the same white Hyundai seen
on the surveillance video from Walmart. Rich concluded
that the surveillance footage was consistent with Kladstrup’s
account of the robbery.
Additional surveillance video from a nearby church showed
the same white Hyundai Sonata arrive at the church parking
lot around 8:30 a.m. The Hyundai was parked and abandoned
in the parking lot at that time. Rich observed five suspects
exit the vehicle, one of whom matched Lu’s physical descrip-
tion. The white Hyundai Sonata was recovered by the police,
and it was confirmed to have been reported stolen. Lu’s fin-
gerprints were found on the vehicle.
Based on Rich’s review of the evidence and messages, she
concluded that it was Lu’s idea to commit the robbery and that
he persuaded the other suspects to participate.
Rich also investigated a robbery involving at least two
suspects that occurred on July 16, 2023. The victim, Raoul
Kolani, reported to police that while he was visiting a park in
Omaha, his car was stolen. After parking his car and walking
into the park, Kolani observed a blue sedan pull up behind
his car. Kolani noticed that the front driver’s side window
of his car was broken and that an Asian male was in the
driver’s seat. As Kolani ran over to his car, the suspect started
it. Kolani reached his car and grabbed at the driver’s door
handle, but the car was locked and slowly rolling away. The
car rolled over the curb, onto the grass, and into a tree. The
suspect in the driver’s seat crawled out of the car window.
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Cite as 33 Neb. App. 45Kolani stated that a second suspect exited the blue sedan
and approached him from behind. This second suspect pulled
out a gun, which Kolani described as a black semiautomatic
“‘boxy, heavy, bold looking . . . Glock 19 or 17’” handgun.
Kolani stated that the gun also had a light and a green laser
attachment. The suspect with the gun yelled “‘you better walk
away, we’re taking it’” and had the laser activated and pointed
at Kolani’s chest. Kolani ran away and called the police.
Minutes after Kolani’s call, officers spotted his car travel-
ing east. The officers followed the car, and an air support unit
provided assistance. The air support officers observed the car
traveling at a high rate of speed and committing multiple traf-
fic violations. The car eventually came to a stop on Ellison
Avenue, where both suspects fled from the car.
One suspect exited from the driver’s door. The other sus-
pect, later identified as Lu, exited from the passenger side of
the car and discarded a black “Nike Air Max” bag, which con-
tained a black handgun with a green laser. Officers pursued,
detained, and arrested Lu and the other suspect. Lu matched
Kolani’s description of the suspect who held him at gunpoint.
In addition, pictures taken from Lu’s Instagram account depict
Lu holding the handle of a firearm that is placed partially
inside a black “Nike Air Max” bag. Other pictures depict Lu
holding a firearm with a green laser.
Upon further investigation, Rich found a conversation from
T.Y.’s Instagram account detailing the July 16, 2023, robbery.
T.Y. indicated that it was Lu’s idea to steal a car. T.Y. stated
that Lu instructed him to break a car window and that he com-
plied. T.Y. also stated that Lu was the suspect who pointed a
gun at the victim.
Rich testified that during her broader investigation of the
Asian Boys Zone, she determined that the gang was associ-
ated with approximately 50 crimes. She stated that a large
majority of the crimes involved stolen vehicles, particularly
Hyundais and Kias. Gang members were also known to steal
property they found in the vehicles they stole or damaged.
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Cite as 33 Neb. App. 45Rich testified that since Lu’s arrest, there had been a notice-
able decline in incidents involving Asian Boys Zone members.
2. Lu’s History in Juvenile Court
During its case in chief, the State called Matthew Miners
to testify regarding Lu’s prior experiences with the juvenile
court system and juvenile probation. Miners is a juvenile
probation officer who works with high-risk youth. He began
working with Lu in December 2021. Lu admitted to Miners
that he associated with a gang.
Lu’s first contact with law enforcement occurred in 2019
when he was approximately 12 years old. Lu was hunting
squirrels with a pellet rifle in violation of “Games and Parks”
regulations. This charge was ultimately dismissed.
In August 2021, Lu was charged with carrying a concealed
weapon, unlawful possession of a handgun by a minor, and
unlawful transportation of firearms. Lu was adjudicated by
the juvenile court and remains on probation for this case. He
was originally detained at the Youth Center, but in September
2021, Lu was transported to the Child Saving Institute, a crisis
stabilization shelter.
While enrolled at the Child Saving Institute, Lu absconded.
He was located, detained at the Youth Center, and eventually
placed back at the Child Saving Institute. He successfully com-
pleted this program and transitioned home in January 2022.
While at home, Lu was provided with additional services,
including electronic monitoring, the family partner transition
program, gang intervention, and community youth coaching.
Participation in those services was closed unsuccessfully in
April 2022 when Lu absconded from home.
While on the run in April 2022, Lu was driving a car when
an officer attempted to stop him for a traffic violation. Lu
evaded the stop, and the police pursued him. Police reports
indicate that Lu was driving more than 100 m.p.h. and com-
mitted several other traffic violations in an attempt to flee. Lu
was eventually stopped with the use of “stop sticks,” which
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STATE V. LU
Cite as 33 Neb. App. 45deflated the car’s tires. Lu was arrested and charged with oper-
ating a motor vehicle to avoid arrest. Miners testified that this
case also remains on the active docket in juvenile court.
Once arrested, Lu was detained at the Youth Center. Lu was
released to the Child Saving Institute again but immediately
absconded. He was located in June 2022 and placed back at
the Youth Center.
In September 2022, Lu was transferred from the Youth
Center to Boys Town for purposes of a long-term placement.
Miners testified that during this stay at Boys Town, Lu began
to improve. He stopped skipping school, improved his grades,
completed intensive outpatient treatment for marijuana use,
tested negative on drug tests, and participated in individual
therapy. However, Miners believed that Lu “still had work
to do” and recommended to the juvenile court that Lu stay
at Boys Town through the summer of 2023. Miners testi-
fied that Lu and Lu’s mother agreed with his assessment and
recommendation.
Despite Miners’ recommendation, in June 2023, the juve-
nile court ordered Lu to return home in an effort to prioritize
reunification. Upon his return home, Lu was not required to
participate in any transitional services because of his success-
ful performance at Boys Town.
One month later, Lu was arrested and charged with mul-
tiple counts related to the July 16, 2023, robbery. Boys Town
contacted Miners and indicated that the facility was willing
to readmit Lu if he agreed to stay there until he successfully
completed the program and graduated from high school. Lu
agreed, and the juvenile court ordered him to be placed at
Boys Town until graduation. In October 2023, while at Boys
Town, Lu was also arrested for the July 15 robbery. After post-
ing bond, he returned to Boys Town and has remained there
pursuant to the juvenile court’s order.
Miners testified that Lu has been “doing well” during
his second stay at Boys Town. Lu earned the highest grade
point average on the campus and expressed a desire to attend
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Cite as 33 Neb. App. 45college. Miners described Lu as a leader in the residence in
which he resides and as a great example to other minors.
Miners believed that retaining these cases in adult court
would not be in Lu’s best interests. When asked whether Lu
needed probation services beyond the age of majority, Miners
answered, “I’m not for sure. I don’t know at this time.”
However, he agreed that there were not many juvenile services
left to provide Lu.
Miners also testified that it would be detrimental to Lu’s
progress to pause his probationary services. Without instant
supervision, Miners feared Lu would “go back to his old
ways.” Therefore, Miners recommended that if Lu were trans-
ferred to adult probation, he should be provided an adult pro-
bation officer immediately. So long as probation services were
not paused, Miners believed that Lu would benefit from being
on either type of probation. Miners explained that Lu does
well when he has somebody holding him accountable.
After the State rested, Lu offered the testimony of Meghan
Voigt, a family home program consultant at Boys Town. As
a program consultant, Voigt assists minors at Boys Town in
identifying their deficiencies and developing the skills neces-
sary to support their growth. Voigt had been Lu’s consultant
since December 2022. Voigt testified that Lu was not ready
to transition home in June 2023. She explained that based on
the program’s research, he needed to spend a year or longer at
Boys Town before being released. Lu had only been at Boys
Town for 9 months when he was sent home. Voigt testified
that during his second stay, Lu was doing well at school, earn-
ing good grades, and was very active in therapy. She stated
that he has the ability to be a strong leader and that he often
leads by example.
Stacey Bergman, Lu’s family teacher at Boys Town, also
testified in Lu’s defense. Bergman explained that her job is
to fulfill the role of mother to the youths placed in her home.
She testified that Lu has been placed in her home during both
of his stays at Boys Town. Bergman stated that Lu was “a
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Cite as 33 Neb. App. 45pretty remorseful kid” who understood the seriousness of his
actions and the potential effects they could have on his life.
Bergman described Lu as a role model and testified that he
was more actively involved at Boys Town during his second
stay. She testified that he has earned several academic awards
and is being considered for an on-campus job, which is con-
sidered an honor at Boys Town because it shows that the
minor is considered trustworthy.
Josh Hinks, Lu’s successful future specialist at Boys Town,
testified that he works with minors such as Lu before and after
graduation to set them up for success once they leave Boys
Town. He explained that Boys Town provides transitional ser-
vices for minors who graduate from the program, including
scholarships, cell phones, vehicles, and housing. Hinks testified
that these after-care resources would be available to Lu if he
were permitted to stay and graduate from Boys Town.
At the conclusion of all the evidence, the district court took
the matter under advisement.
3. District Court’s Order
On March 13, 2024, the district court entered a three-page
order overruling Lu’s motions to transfer his cases to the
juvenile court. The court found that the State had met its
burden of proof and had shown a sound basis to retain Lu’s
cases in the district court. The details of the district court’s
consideration of the transfer factors contained in Neb. Rev.
Stat. § 43-276 (Cum. Supp. 2022) will be provided in our
analysis below.
Lu appeals the denial of his motions to transfer these cases
to the juvenile court. The cases have been consolidated by this
court on appeal.
III. ASSIGNMENTS OF ERROR
Lu assigns, summarized and restated, that the district court
abused its discretion in (1) failing to make the sufficient
findings required under § 43-276, (2) finding a sound basis
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consider exhibits 36 and 37.
IV. STANDARD OF REVIEW
[1,2] A trial court’s denial of a motion to transfer a pending
criminal proceeding to the juvenile court is reviewed for an
abuse of discretion. State v. Aldana Cardenas, 314 Neb. 544,
990 N.W.2d 915 (2023). An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.V. ANALYSIS
1. Jurisdiction
Section 29-1816(3)(c) provides that “[a]n order granting or
denying transfer of [a] case from county or district court to
juvenile court shall be considered a final order for the pur-
poses of appeal. Upon entry of an order, any party may appeal
to the Court of Appeals within ten days.” On March 13,
2024, the district court entered an order denying Lu’s motion
to transfer his cases to juvenile court. Lu filed his notice of
appeal on March 15. His appeal is timely.
2. Legal Framework
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants con-
current jurisdiction to the juvenile court and the county or
district courts over juvenile offenders who (1) are 11 years of
age or older and commit a traffic offense that is not a felony or
(2) are 14 years of age or older and commit a Class I, IA, IB,
IC, ID, II, or IIA felony. Actions against these juveniles may
be initiated either in juvenile court or in the county or district
court. In the present case, all the allegations against Lu put
him within the second category of juvenile offenders.
When an alleged offense is one over which both the juve-
nile court and the criminal court can exercise jurisdiction, a
party can move to transfer the matter. For matters initiated
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court pursuant to § 29-1816(3).
In the instant case, when Lu moved to transfer his case to
juvenile court, the district court conducted a hearing pursuant
to § 29-1816(3)(a), which subsection requires consideration
of the following factors set forth in § 43-276(1):
(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 appre-
ciate 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 extend-
ing beyond his or her minority and, if so, the available
alternatives best suited to this purpose; (j) whether the
victim or juvenile agree to participate in restorative jus-
tice; (k) whether there is a juvenile pretrial 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.
The customary rules of evidence shall not be followed at
such hearing, and “[a]fter considering all the evidence and
reasons presented by both parties, the case shall be transferred
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case in county court or district court.” See § 29-1816(3)(a).
[3-5] As the Nebraska Supreme Court has explained, in con-
ducting a hearing on a motion to transfer a pending criminal
case to juvenile court, “[i]t is a balancing test by which public
protection and societal security are weighed against the practi-
cal and nonproblematical rehabilitation of the juvenile.” State
v. Aldana Cardenas, 314 Neb. 544, 561, 990 N.W.2d 915, 928
(2023). “[I]n order to retain the proceedings, the court need not
resolve every statutory 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.” Id. “[T]he
burden of proving a sound basis for retention lies with the
State.” Id. at 557, 990 N.W.2d at 926.
3. Sufficient Findings Under § 43-276
Lu alleges that the district court failed to make sufficient
findings pursuant to § 43-276 to warrant retaining these cases.
He notes that the district court did not make any oral findings
and contends that the findings contained in the court’s writ-
ten order were minimal, confusing, and “generally displayed
a misunderstanding of the evidence adduced at the hearing.”
Brief for appellant at 24.
The State disagrees. While the State acknowledges that the
district court’s order does not address all the factors set forth
in § 43-276, it argues that the court was not required to do so.
The State asserts that the court was required only “to issue an
order that provided sufficient specificity to permit meaningful
review by the appellate court, which it did.” Brief for appellee
at 19.
[6,7] Under § 29-1816(3)(a) and (b), the district court is
required to consider the factors set forth in § 43-276 and set
forth findings for the reason for its decision to retain or trans-
fer a case. The Supreme Court has held that the district court
must make a statement of its findings that provides sufficient
specificity to permit meaningful review by appellate courts.
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Cite as 33 Neb. App. 45See, State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018);
State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988). While
it is the better practice for the trial court to refer to all the
statutory factors in its order, the court is not required to do so.
See State v. Tyler P., supra.In State v. Doyle, 237 Neb. 60, 464 N.W.2d 779 (1991),
the Supreme Court remanded a case back to the trial court to
make specific findings as provided by the statute on a motion
to transfer to juvenile court. The court found that neither the
oral findings nor the court’s written order sufficiently detailed
the findings made in support of the order denying transfer. The
trial court’s written order was referred to as a “checklist” order
and failed to include any case-specific facts or details.
In contrast, there have been cases where the trial court failed
to discuss every factor set forth in § 43-276 or failed to specifi-
cally identify the factors relied upon in reaching its decision,
and appellate courts have nonetheless affirmed the trial courts’
rulings. See, e.g., State v. Tyler P., supra; State v. Stewart,
197 Neb. 497, 250 N.W.2d 849 (1977), disapproved on other
grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706(1986); State v. Esai P., 28 Neb. App. 226, 942 N.W.2d 416(2020). For example, in State v. Tyler P., supra, the Supreme
Court ruled that the district court’s written order, which merely
set forth the transfer factors and sustained the motion to
transfer, without more, would not have permitted meaningful
review. However, the Supreme Court found that the oral find-
ings made by the district court provided sufficient specificity
for review. In its oral findings, the district court stated that
it had weighed the statutory factors and balanced them with
public safety concerns. The court specifically referenced five
factors it deemed relevant to resolution of the case.
This case is more similar to State v. Tyler P., supra, than
State v. Doyle, supra. This is not a case where the district
court checked boxes on a template or failed to include any
case-specific details in its order. Here, the district court issued
a three-page written order, which included an analysis of six
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Cite as 33 Neb. App. 45§ 43-276 factors it found to be the most relevant in resolving
the motion. The court did not address the remaining factors.
[8] Our review of the district court’s findings is further
complicated by the manner in which courts are required
to assess the statutory factors as set out in State v. Aldana
Cardenas, 314 Neb. 544, 990 N.W.2d 915 (2023). In Aldana
Cardenas, the Supreme Court found that because it is the
State’s burden to prove that a sound basis exists for retain-
ing a case in the district court, any factor found not to favor
retention should be considered a factor that favors transfer.
The Supreme Court found that given the burden of proof, no
factor can be considered neutral or not applicable. Applying
that rationale to the present case, the absence of any findings
by the district court regarding the nine remaining statutory
factors could arguably lead a reviewing court to conclude
that the district court found those factors favor transfer to the
juvenile court. In other words, the silence of the district court
may imply an analysis that was not intended. Thus, it is now
more important for trial courts to address all statutory factors
in their rulings. A full analysis will provide clear reasoning
for appellate courts to review on appeal. We again encourage
trial courts to specifically address all the § 43-276 factors in
their orders ruling on a motion to transfer.
Here, the record is silent regarding the district court’s find-
ings on the nine remaining factors. However, the court’s order
is clear that the six factors it addressed were of such weight as
to convince the court that the cases herein should be retained.
In similar cases where the trial court addressed only a subset
of the statutory factors, we have nonetheless reviewed the
additional factors. See, e.g., State v. Esai P., supra. We choose
to follow the same path here as will be displayed in the analy-
sis to follow.
Although the district court did not address every statutory
factor and did not specifically identify which factors it was
addressing, we read the court’s order to incorporate or con-
sider the following factors set forth in § 43-276(1): (a) the
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Cite as 33 Neb. App. 45type of treatment such juvenile would most likely be amenable
to; (d) the age of the juvenile; (e) the previous history of the
juvenile; (f) the best interests of the juvenile; (g) consideration
of public safety; and (i) whether the best interests of the juve-
nile 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.
As stated above, the trial court need not resolve every statu-
tory factor against the juvenile, and there are no weighted fac-
tors and no prescribed method by which more or less weight
is assigned to a specific factor. See State v. Aldana Cardenas,
supra. Further, while it is preferable for the trial court to refer
to all the statutory factors in its order, it is not required to do
so. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
Therefore, because the district court addressed the factors it
deemed persuasive, we cannot say that it abused its discretion
by failing to address every factor or failing to address factors
in a specific way. This assignment of error fails.
4. Was Denial of Transfer
Abuse of Discretion?
In his brief on appeal, Lu alleges that the district court
abused its discretion in finding a sound basis existed to retain
these cases in the district court. He argues that the evidence
largely favored transferring his cases to the juvenile court.
The State submits that there was no abuse of discretion and
that the evidence favored retention. We agree with the State
that the district court did not abuse its discretion in retaining
jurisdiction over these cases. We review below the district
court’s analysis of six statutory factors and independently
review the remaining factors.
(a) Factors Analyzed by District Court
Although the district court did not specify which factors
it considered in its ruling, after reviewing the order, we have
determined that the following factors were considered by the
district court to weigh in favor of retaining jurisdiction.
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Cite as 33 Neb. App. 45(i) § 43-276(1)(a)—Type of Treatment
Amenable to Juvenile
With regard to what type of treatment Lu would be ame-
nable to, the district court stated: “In Juvenile Court, [Lu]
would only receive two more years of supervision. The fact is
that may not be enough time for [Lu] to gain the knowledge
and skills he needs to help him change his criminal mindset
and behaviors.”
Lu asserts that the district court failed to give proper weight
to the fact that he was amenable to treatment and placement
at Boys Town. After reviewing the record, we cannot say that
the district court improperly weighed this information. To the
contrary, in its order, the court acknowledged that Lu was
successfully released from Boys Town in June 2023 and that
employees from Boys Town advocated for his continued par-
ticipation in the program. However, within 1 month after Lu
was released from Boys Town, the present offenses for which
he has been charged were committed. Lu’s alleged conduct in
these offenses was more violent and serious than the offenses
for which he was on probation in the juvenile court.
Given this evidence of escalating criminal behavior, we can-
not say that the court abused its discretion in finding that Lu
would be more amenable to adult services. We recognize that
Lu has done well when living in the structured environment
provided by Boys Town. But, given our standard of review
and Lu’s actions following his prior release from Boys Town,
we cannot say the district court abused its discretion in find-
ing that juvenile services have been unable to fully rehabilitate
him. Further, Miners, the juvenile probation officer, testified
that there were not many juvenile services left to provide Lu,
should the additional efforts at Boys Town fail.
(ii) § 43-276(1)(d)—Age of Juvenile
and Others Involved in Offenses
The court noted that Lu would turn 17 years old in May
2024. The court reiterated that Lu’s age would limit him to
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Cite as 33 Neb. App. 452 years of juvenile services, which would likely be an insuf-
ficient amount of time to treat and supervise Lu.
The district court did not mention the age of Lu’s accom-
plices, but Rich’s testimony and the police reports indicate
that Lu committed these crimes with other minors. Further,
social media messages established that Lu was a leader and
instigator of these crimes. He boasted about his prior criminal
activities to the other minors involved and encouraged them
to commit crimes with him. We agree that this factor favors
retention in the district court.
(iii) § 43-276(1)(e)—Previous
History of Juvenile
Regarding Lu’s previous history, the district court stated
Lu “had been receiving services through Juvenile Court from
approximately August 2021 through June 2023, when he was
successfully released from probation. In July 2023 - within
one month of his release from probation - he participated in
the offenses he is currently charged with committing.” We
acknowledge that the evidence did not suggest that Lu was
successfully released from probation in June 2023. According
to Miners, Lu continues to have two open cases in the juve-
nile court system and remains on juvenile probation. The
district court was well aware that Lu had been placed back at
Boys Town by the juvenile court after his arrest on the pres-
ent charges. Therefore, the court’s inadvertent reference to Lu
being released from probation likely references Lu’s release
from Boys Town in June 2023.
The district court’s concern with Lu’s pattern of being
released only to reoffend is not unwarranted. Lu’s criminal
history demonstrates that, while he thrives in structured envi-
ronments such as Boys Town, to this point he has not been
willing or able to transfer those behaviors and skills to life
outside of Boys Town.
Lu’s prior juvenile adjudications include charges of unlaw-
ful possession of a firearm and operating a motor vehicle to
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Cite as 33 Neb. App. 45avoid arrest. Prior to his placement at Boys Town, he had a
history of absconding from placement homes and using or pos-
sessing firearms. In addition, Lu’s current offenses are more
violent than his prior charges, indicating that Lu’s criminal
behavior is escalating as he ages. We agree that this factor
favors retention in the district court.
(iv) § 43-276(1)(f)—Best
Interests of Juvenile
The district court found that because Lu would likely need
services beyond his minority, it was in Lu’s best interests to
retain these cases in the district court and provide him with
adult services. Lu argues that the district court erred in finding
that it was in his best interests to be tried as an adult. We agree
with Lu.
After reviewing the evidence, we conclude that it would
be in Lu’s best interests to transfer these cases to the juvenile
court. Like any other juvenile, Lu’s long-term interests would
be better served with adjudication in the juvenile court rather
than having an adult record containing felony convictions.
Additional time at Boys Town under a juvenile court place-
ment would provide Lu with the structure that he needs, and
it would allow him to continue with his rehabilitation while
pursuing a high school diploma. If Lu chose to apply the les-
sons learned at Boys Town to his life when that program is
completed, he would enjoy the best possible outcome.
We understand the district court’s point that if there is insuf-
ficient time to rehabilitate a juvenile, then it may be in the
juvenile’s best interests to be a part of a longer-term program.
But we believe the district court’s analysis of Lu’s best inter-
ests is more appropriate for factor (i), discussed below, which
concerns the amount of time a juvenile may require in secure
detention or under supervision. We find that consideration of
Lu’s best interests favors transfer to the juvenile court.
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Cite as 33 Neb. App. 45(v) § 43-276(1)(g)—Public Safety
The district court determined that public safety concerns
would require that Lu continue under court supervision for a
period extending beyond the age of majority.
Lu asserts that the district court incorrectly analyzed this
factor. He argues that by continuing in the Boys Town pro-
gram, there would be no risk to public safety. While we agree
that the evidence demonstrated that Lu was of minimal risk
to others while he remained at Boys Town, strong evidence
existed that Lu posed a risk to the public after his release.
Lu’s escalation of violent crimes, his targeting of random
victims, his use of firearms, and his influence on others to
commit violent crimes all pose a risk to public safety. His first
stay at Boys Town was by all accounts a successful one. He
was released in June 2023 based on his positive performance
there. Only a month later, he was arrested for participating in
armed robberies connected to gang activity. This pattern sug-
gests Lu would still pose a risk to the public even if he was
permitted to stay at Boys Town until graduation. We agree
with the district court that this factor favors retention in the
district court.
(vi) § 43-276(1)(i)—Whether Juvenile’s Best Interests
and Public Security Require Juvenile to Continue
in Secure Detention or Under Supervision for
Period Extending Beyond His Minority
The district court found that Lu’s best interests and the
security of the public required that Lu continue in secure
detention or under supervision beyond the age of 19. Lu
argues that because Miners testified only that he was unsure
of whether Lu would require services beyond age 19, the
State failed to meet its evidentiary burden for retention. We
disagree. Miners’ testimony, paired with the violence of Lu’s
alleged crimes, the escalation of his criminal behavior, his
failed attempts at rehabilitation in juvenile probation, and his
gang activity, support the district court’s conclusion that Lu
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Cite as 33 Neb. App. 45requires detention and/or supervision extending into his adult-
hood. This factor favors retention in the district court.
(b) Factors Not Discussed
by District Court
Based on our reading of the district court’s order, the factors
below were not discussed or contemplated within the order.
(i) § 43-276(1)(b)—Whether Alleged
Offenses Included Violence
Lu’s alleged offenses involve violence. He is charged with
two counts of robbery, two counts of criminal conspiracy to
commit robbery, and one count of use of a deadly weapon
(firearm) to commit a felony. In each case, the victims were
threatened with firearms. In the July 16, 2023, robbery, Lu
was identified as the suspect who wielded the firearm. The
victim stated that Lu activated the gun’s laser and pointed it
at his chest. The seriousness of the threat to life cannot be
understated. This factor weighs in favor of retention in the
district court.
(ii) § 43-276(1)(c)—Motivation
for Commission of Offenses
The objective for these offenses was to rob seemingly ran-
dom individuals of their money, property, and vehicles. Thus,
the primary motivation appears to be financial. A reading of the
police reports also reveals a thrill-seeking motive in that the
stolen vehicles were driven recklessly, then abandoned. This
factor weighs in favor of retention in the district court.
(iii) § 43-276(1)(h)—Juvenile’s Ability to Appreciate
Nature and Seriousness of Conduct
The evidence established that following the commission
of his offenses, Lu has demonstrated an appreciation for the
nature and seriousness of his conduct. Bergman testified that
Lu was remorseful and understood the potential implications
his actions could have on his future. However, the evidence
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Cite as 33 Neb. App. 45also shows that Lu has an established pattern of being adju-
dicated, participating in juvenile probation services, and then
committing new crimes. This suggests that despite his appre-
ciation, Lu is unable or unwilling to lead a law-abiding life
once he becomes unconstrained by a structured environment.
It is unknown at this point in time whether the current ser-
vices that are being supplied to Lu will be sufficient to fully
rehabilitate him. Thus, this factor, to some degree, weighs in
favor of retention in the district court.
(iv) § 43-276(1)(j)—Restorative Justice
No evidence was presented regarding whether the victim
had agreed to participate in restorative justice. Therefore, this
factor weighs in favor of transfer to the juvenile court.
(v) § 43-276(1)(k)—Pretrial Diversion Program
No evidence was presented regarding available pretrial
diversion programs. Therefore, this factor weighs in favor of
transfer to the juvenile court.
(vi) § 43-276(1)(l)—Whether Juvenile Has Acknowledged
or Been Convicted of Unauthorized Use
or Possession of Firearm
Lu was adjudicated for unlawful possession of a handgun in
2021. Both present offenses involved armed robbery with the
use of a firearm. In one of the cases, Lu was identified as the
suspect wielding the firearm. Several photographs and videos
depict Lu carrying or firing a firearm in a reckless manner.
This factor weighs in favor of retention in the district court.
(vii) § 43-276(1)(m)—Whether Juvenile Court
Order Has Been Issued for Juvenile
Pursuant to § 43-2,106.03
No evidence was presented regarding whether a juvenile
court order had been issued for Lu pursuant to Neb. Rev. Stat.
§ 43-2,106.03. (Reissue 2016). Therefore, this factor weighs in
favor of transfer to the juvenile court.
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Cite as 33 Neb. App. 45(viii) § 43-276(1)(n)—Whether Juvenile
Is Criminal Street Gang Member
Lu informed Miners that he associated with a gang and has
been identified by the police as a member of the Asian Boys
Zone gang. After his release from Boys Town, he immediately
returned to gang-related activities, which led to the present
offenses. This factor weighs in favor of retention in the dis-
trict court.
(ix) § 43-276(1)(o)—Other Relevant Matters
Lu argues that the State originally filed these cases in juve-
nile court, dismissed them, and then refiled them in the dis-
trict court without consulting the juvenile court, Boys Town,
or Lu’s probation officer. Lu asserts that this procedural his-
tory favors retention, but he fails to explain why or identify
any authority that requires consultation prior to dismissal.
We therefore do not consider this factor to be relevant to our
determination.
Lu also argues that the potential immigration consequences
he faces if his cases are retained in the district court should
also be considered. We agree and address this issue more fully
below. In short, this factor contributes to the consideration
of Lu’s best interests, as it would certainly not be in his best
interests to be removed from the country. And we have already
found that the factor concerning Lu’s bests interests supports
transfer to the juvenile court.
(c) No Abuse of Discretion
[9] Out of the six factors the district court considered and
deemed in favor of retention, we agree that five of those fac-
tors supported retention. The district court did not analyze the
remaining statutory factors. However, our assessment of all
of the statutory factors leads us to conclude that the district
court did not abuse its discretion by overruling Lu’s motion to
transfer his cases to the juvenile court. We do not make this
determination lightly. As we have often stated in our review
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Cite as 33 Neb. App. 45of juvenile transfer cases, these are difficult decisions for the
trial court and for this court on appeal because of the young
age of the defendants. However, a young age by itself does not
support a transfer to the juvenile court. See State v. Esai P., 28
Neb. App. 226, 942 N.W.2d 416 (2020).
[10] Ultimately, having reviewed the district court’s analy-
sis of six statutory factors, and having independently reviewed
the remaining factors, we conclude that the district court did
not abuse its discretion in refusing to transfer these cases to
juvenile court. Based on Lu’s age, the treatment Lu would be
most amenable to, Lu’s unsuccessful history with past juvenile
probation services, considerations of public safety, and the
likelihood of Lu’s requiring secure detention or supervision
beyond his minority, the district court concluded that a sound
basis existed to retain these cases. We agree with the court’s
assessment of these factors. We also find that five factors
that the district court did not address favor retention. These
include the serious and violent nature of the alleged offenses,
Lu’s repeated use or possession of firearms, and his affilia-
tion with a criminal gang. When the district court’s basis for
retaining jurisdiction over a juvenile is supported by appropri-
ate evidence, it cannot be said that the court abused its discre-
tion in refusing to transfer the case to juvenile court. State v.
Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018). Therefore,
because there was ample evidence supporting retention of
these cases in the district court, we find no abuse of discretion
in the district court’s order denying Lu’s request to transfer
his cases to juvenile court.
We do not seek to diminish or overlook Lu’s success at
Boys Town. The progress and achievements he has made there
are commendable. Although we have determined that the dis-
trict court’s decision to retain jurisdiction was not an abuse of
discretion, moving forward with his cases in the district court,
Lu may still request disposition under the juvenile code. Neb.
Rev. Stat. § 29-2204(5) (Cum. Supp. 2022) states:
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Cite as 33 Neb. App. 45Except when a term of life is required by law, whenever
the defendant was under eighteen years of age at the
time he or she committed the crime for which he or she
was convicted, the court may, in its discretion, instead of
imposing the penalty provided for the crime, make such
disposition of the defendant as the court deems proper
under the Nebraska Juvenile Code.
Lu was under the age of 18 when he allegedly committed
these crimes, and none of his present charges require a life sen-
tence. Thus, even though his cases will remain in the district
court, Lu is eligible for disposition under the juvenile code. If
Lu is convicted, at the time of sentencing, the district court,
in its discretion, will be able to consider this course of action.
The court can consider whether an alternative disposition is
appropriate in light of Lu’s progress or lack thereof during the
time that passes prior to sentencing.
5. Evidentiary Rulings
On appeal, Lu assigns that the district court abused its dis-
cretion by failing to consider exhibits 36 and 37.
[11,12] As we have explained above, § 29-1816(3)(a) states
that the customary rules of evidence do not apply in juvenile
transfer hearings. Further, the statute states that the district
court must consider all the evidence and reasons presented
by both parties before issuing its ruling. In a case where the
district court declined to review and consider certain police
reports offered by the State, the Supreme Court concluded that
that the district court had erred. See State v. Tyler P., 299 Neb.
959, 911 N.W.2d 260 (2018). However, the court also noted
that our harmless error jurisprudence recognizes that an error
is only prejudicial and requires reversal when, in light of the
totality of the record, the error influenced the outcome of the
case. See id.Exhibit 36 is an affidavit from an assistant public defender
regarding immigration law. The public defender states that
Lu could face potential immigration consequences, including
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Cite as 33 Neb. App. 45removal from the country, if he were convicted of robbery or
conspiracy to commit robbery. As stated above, this informa-
tion is relevant to Lu’s best interests, as it would certainly
be against his best interests to be removed from the coun-
try. However, we are unsure why Lu chose to present this
information in this manner. A lawyer’s opinion regarding an
aspect of the law appears to be more of an argument than
evidence. The evidence established that Lu was not a citizen
of the United States. Thus, counsel could have simply cited
the appropriate federal statutes and authorities for their posi-
tion. Nonetheless, to the degree that rejection of the affidavit
was error, the error was harmless. We have already concluded
that the district court erred in finding that Lu’s best interests
favored retention. We found that Lu’s best interests favored
transfer, and yet, we concluded that even with this shift in the
balancing test, the district court did not err in retaining the
cases. Therefore, even if the court had received exhibit 36, it
would not have affected the outcome of the motion.
Regarding exhibit 37, we conclude that the district court
did not err in declining to receive this exhibit. Exhibit 37
is a deposition taken of Conoley in a separate case in 2014
concerning child brain development and its application to that
case. Although it is true that the standard rules of evidence do
not apply in juvenile transfer hearings, the district court may
still rule on evidentiary objections. The State objected to this
exhibit, arguing that the deposition was dated, that the State
had no basis to determine whether the information contained
in the deposition was still accurate, and that the deposition was
not specific to this case. Based on this reasoning, the district
court sustained the objection. We find no abuse of discretion
in the district court’s ruling. The deposition was not particular
to Lu or his cases, and there was no evidence that Conoley’s
past testimony reflected current research or was still reliable.
Thus, the district court did not err when it sustained the objec-
tions to exhibit 37.
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Cite as 33 Neb. App. 45VI. CONCLUSION
For all the reasons stated herein, we affirm the decision of
the district court denying Lu’s motions to transfer these matters
to the juvenile court.
Affirmed.