State v. Esai P. , 28 Neb. Ct. App. 226 ( 2020 )

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STATE v. ESAI P.
Cite as 28 Neb. Ct. App. 226
State of Nebraska, appellant,
v. Esai P., appellee.
___ N.W.2d ___
Filed April 21, 2020. Nos. A-19-1120, A-19-1121.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
Error. A motion to transfer a pending criminal proceeding to the juve-
nile 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 rehabili-
tation of the juvenile.
4. ____: ____: ____. In order to retain jurisdiction over a juvenile, 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.
5. Courts: Juvenile Courts: Jurisdiction: Proof. In a motion to transfer
to juvenile court, the burden of proving a sound basis for retention lies
with the State.
6. Courts: Juvenile Courts: Jurisdiction. Neb. Rev. Stat. § 29-1816(3)(a)
(Cum. Supp. 2018) requires the trial court to consider all the evidence
and reasons presented by both parties before a case may be transferred
to juvenile court.
7. ____: ____: ____. Although it is preferable for a district court to refer to
all the statutory considerations set forth in Neb. Rev. Stat. § 43-276(1)
(Supp. 2019), the statute does not require it to do so.
8. Courts: Juvenile Courts: Jurisdiction: Evidence. There is no arith-
metical computation or formula required in a court’s consideration of
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STATE v. ESAI P.
Cite as 28 Neb. Ct. App. 226
the statutory criteria or factors. There are no weighted factors, that is,
no prescribed method by which more or less weight is assigned to each
factor specified by statute.
9. ____: ____: ____: ____. When a district court’s basis for retaining juris-
diction over a juvenile is supported by appropriate evidence, it cannot be
said that the district court abused its discretion in refusing to transfer the
case to juvenile court. Similarly, when a district court’s basis for grant-
ing a transfer to the juvenile court is supported by appropriate evidence,
it cannot be said that the district court abused its discretion in granting
the transfer.
Appeals from the District Court for Douglas County:
Marlon A. Polk, Judge. Reversed and remanded for fur-
ther proceedings.
Donald W. Kleine, Douglas County Attorney, and Jameson
Cantwell for appellant.
Jeffrey S. Leuschen for appellee.
Pirtle, Riedmann, and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
The State appeals the orders of the Douglas County District
Court which transferred two pending criminal proceedings
filed against 16-year-old Esai P. to the separate juvenile court
of Douglas County. Because there was substantial evidence
supporting the retention of the cases in the district court
for the sake of public safety and societal security, and there
was a lack of evidence demonstrating that any further reha-
bilitation through the juvenile system would be practical and
nonproblematical in the limited time left under the juvenile
court’s jurisdiction, we conclude the district court abused its
discretion in granting the transfer of both cases to the juvenile
court. We therefore reverse the district court’s orders grant-
ing Esai’s motions to transfer the two cases to juvenile court,
and we remand the causes for further proceedings in the dis-
trict court.
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STATE v. ESAI P.
Cite as 28 Neb. Ct. App. 226
II. BACKGROUND
1. Incidents Leading to Criminal Charges
(a) Robbery and Assault Charges
In case No. CR 19-3258 (appeal case No. A-19-1120), an
information was filed in the district court on September 6,
2019, charging Esai with two counts: (1) robbery pursuant to
Neb. Rev. Stat. § 28-324(1) (Reissue 2016), a Class II felony,
and (2) second degree assault pursuant to Neb. Rev. Stat.
§ 28-309(1)(a) (Reissue 2016), a Class IIA felony.
These charges stemmed from an incident that took place on
June 16, 2019, in which a male victim was set up to believe
he would be selling marijuana to a certain female, but when
he arrived at the place to meet her, she was present along
with “two other Hispanic males,” one of whom was Esai. The
victim knew Esai from high school. Esai punched the victim
in the face, and when the victim and Esai began to fight,
Esai told the other male to shoot the victim in the leg, which
he did.
The female involved admitted she set up the victim to “get
robbed.” She said that she was with Esai and Kevin Solorzano
and that she saw both of them with firearms. Esai had a silver
firearm, and Solorzano had a black firearm. She heard two
shots but did not see who did the shooting. Marijuana was
taken from the victim, but the victim did not know who took it.
The victim almost had to have his leg amputated; eight opera-
tions were necessary to save his leg.
(b) Attempted Assault and
Firearm Charges
In case No. CR 19-3257 (appeal case No. A-19-1121), an
information was filed in the district court on September 6,
2019, charging Esai with eight counts: attempted assault in
the first degree pursuant to Neb. Rev. Stat. §§ 28-308(1) and
28-201(4)(b) (Reissue 2016), a Class IIA felony (counts 1,
2, 3); use of a deadly weapon (firearm) to commit a felony
pursuant to Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Reissue
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2016), a Class IC felony (counts 4, 5, 6, 8); and discharging a
firearm at an inhabited house, occupied building, or occupied
vehicle pursuant to Neb. Rev. Stat. § 28-1212.02 (Reissue
2016), a Class ID felony (count 7).
The charges in this case stemmed from an incident which
took place on June 19, 2019. At approximately 12:14 p.m., two
detectives with the Omaha Police Department, along with an
intern, were conducting an investigation and were driving in an
unmarked police car when they observed what they believed
to be suspicious activity. They saw a Honda sedan “parked
kind of cockeyed” in the street, “running,” and with someone
in the driver’s seat. They then saw “two Hispanic male juve-
niles with their hoods up, kind of running or jogging through
a yard” enter the awaiting vehicle which then immediately left
the area. The detectives in the unmarked car, who were not in
uniform, followed the Honda from a distance while attempting
to get a marked cruiser into the area. They followed the Honda
down an alleyway and made several turns, following “from
approximately ten car lengths” and “maintaining visual of the
vehicle the entire time.” A “Hispanic male juvenile . . . kind
of leaned his upper body, head and torso, out of the passenger
side of the vehicle and motioned . . . towards them to kind of
continue following them”; it resembled a “bring-it-on” type of
motion. The detectives in the unmarked car continued to fol-
low for several more turns and ultimately followed the Honda
down an alleyway where, after briefly losing sight of the
Honda, they saw it parked near a house at a specific address on
Pine Street in Omaha, Nebraska, and also saw “two Hispanic
male juveniles” exit the Honda. The detectives and the intern,
who were parked in an alleyway across from the house, were
then “almost immediately” fired upon from the direction of
the house. One detective saw somebody in a shooting stance
in the driveway of the house; the intern saw someone step off
the front porch of the house into the driveway who then fired
upon them. The detectives “ducked down in their vehicle,”
and once the gunfire ceased, they checked on the intern and
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then grabbed their bulletproof vests and advanced toward
the house. They observed two different caliber shell casings
and beer cans; the Honda they had been following left the
area, and the detectives did not see if anybody else got into
it. The detectives also observed several individuals running
between houses, going westbound. The detectives described
“all the individuals that they could see as being Hispanic males
between the ages of 17 and 20.”
Another detective with the homicide unit investigated and
documented the scene at the Pine Street residence. A SWAT
team was brought in to enter the house once a warrant was
issued. In addition to observing several beer cans in the drive-
way, the detective also found six shell casings in the driveway,
“four of those were .45 caliber shell casings, two of them were
.32 caliber shell casings.” According to the detective, the two
different caliber shell casings indicated that more than one
individual discharged a firearm. Next to the detectives’ car
were “two spent projectiles, copper jacketing from the bul-
lets that were fired.” There were “two noticeable defects” in
the detectives’ car, one underneath the driver’s side headlight
and the other on the front driver’s side quarter panel. The two
“defects” were different in size or diameter; the larger defect
appeared in the front driver’s quarter panel and a smaller
one appeared under the driver’s side headlight. The detec-
tive acknowledged that the defects were consistent with there
being two different shell casings located nearby. A “.32 caliber
Kel-Tec P-32 handgun” was located nearby. The detective fur-
ther confirmed that a .45-caliber and .32-caliber firearm were
both capable of inflicting serious bodily injury or death.
Several suspects were taken into custody that same day.
Officer Brandon Braun, who worked in gang intelligence, con-
ducted interviews of the suspects. According to one 16-year-
old suspect, there were seven people at the Pine Street resi-
dence that day. They were “barbecuing, drinking, looking
over at guns.” The suspect and a couple others (not Esai) in
the “Playboy Surenos” gang decided to do a “beer run, which
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is where . . . you go and steal beer from a liquor store or gas
station” because no one was of age. The suspect was driving
the Honda, and on the way to the gas station, they noticed
graffiti representative of the “6500” gang, so they decided to
spray paint that graffiti and “apply their own graffiti or tag-
ging.” It “was a pretty highly trafficked area,” and they knew
a “6500” gang member lived close by, “so they got nervous
and started to leave that area.” When they left, they observed
a car behind them. They made several turns, and the car kept
following them. They returned to the residence on Pine Street,
“where they had previous associates there, and they knew there
were guns there.” The suspect called the person who lived at
the Pine Street residence and communicated something about
the “six-five’s” being behind them; “he relayed that they were
being followed by a rival gang,” and he told them to get ready.
Officer Braun agreed that the people in the Honda and the
people at the Pine Street residence believed the Honda was
being followed by rival gang members and were afraid “they
were going to be shot at or shot and killed.”
When the Honda arrived at the residence, the two passengers
in it exited and “ran out as fast as they could, and within sec-
onds, there were shots fired from the [residence].” The driver
took off in the Honda, drove about a block or two, and then
a “bunch of his associates from that residence jumped over a
fence and then proceeded to get into his vehicle.” They tried to
get to Council Bluffs, Iowa, but “got lost on some back roads”
and were subsequently pulled over by the police. Everyone
in the Honda was taken into custody. The 16-year-old driver
identified the seven people who were at the residence, includ-
ing Esai.
Officer Braun interviewed a 17-year-old suspect who
described “pretty much the same thing.” He was involved in
the “beer run” and was one of the people “crossing out the
6500 tagging.” This suspect indicated that on the way back
to the Pine Street residence, the other person in the front pas-
senger seat of the Honda “was throwing up what he considered
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gang signs towards the vehicle that was following them.”
The 17-year-old suspect described a cell phone call between
the driver and the person at the residence; he “was scared
that there was going to be a shoot-out” once they got to the
residence. This suspect specifically described the firearms they
were looking at before the beer run. He described a black and
silver .45-caliber firearm that he said “was kind of the com-
munity gun that their gang kind of passed around a lot.” He
also described the .32-caliber firearm and said it was in Esai’s
possession. During the shooting, this suspect was running, and
when he got back to the residence, he observed one person
with the .45-caliber firearm and Esai with the .32-caliber fire-
arm. This suspect subsequently ran, jumped a fence, and got
into the Honda.
Officer Braun also interviewed Solorzano, who was 18
years old at the time. Solorzano was at the residence dur-
ing the beer run, but his statements were similar to the oth-
ers regarding the drinking, the barbecue, and who was at the
residence. Solorzano admitted shooting at the detectives’ car.
He had been shot a week or two prior in a gang shooting and
“was afraid it was the same gang that they had been in a gun
battle with.” Solorzano was aware of the cell phone call from
the Honda, and he went out with a gun to “protect his associ-
ates.” Solorzano used the .45-caliber weapon, and he identified
Esai as being the other shooter. Solorzano indicated he meant
to fire once, but believed he fired twice. After the shooting,
Solorzano handed the .45-caliber firearm off to the person who
had been in the Honda’s front passenger seat, and then he ran,
jumped the fence, and got into the Honda with the others. The
.45-caliber firearm had not been located by the time of Esai’s
motion to transfer hearing.
According to Officer Braun, Esai was not taken into cus-
tody the day of the incident, but a warrant for his arrest was
issued that night. It took about a month for Esai to be taken
into custody. Numerous efforts were made to try to locate Esai.
He was finally located at a residence with a member of the
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Playboy Surenos gang. The other gang member also had an
arrest warrant; a search of the residence turned up a firearm
inside a bag, but not the .45-caliber firearm from the shooting
incident. Officer Braun interviewed Esai for a couple of hours
about the June 19, 2019, shooting incident. Esai “made state-
ments referring” to being a shooter on June 19. He acknowl-
edged being in possession of the .32-caliber firearm, but said
that he did not know it was the police and that he was scared
because of the prior shooting with another gang. Esai indicated
that his firearm had been provided to him by the same female
who had lured the robbery victim in Esai’s other case. She had
apparently stolen it from her brother.
2. Hearing on Motion
to Transfer
On October 7, 2019, Esai filed a motion to transfer each
case to the separate juvenile court of Douglas County. A hear-
ing on both motions took place on November 21.
(a) State’s Evidence
At the November 21, 2019, hearing, several law enforce-
ment officers testified about the events which took place on
June 16 and 19, as described previously. A number of exhibits
were also offered and received without objection.
In addition to describing his interviews with the suspects
involved with the June 19, 2019, shooting incident as set
forth previously, Officer Braun also testified about his “long
history with Esai.” He testified he first had contact with Esai
approximately 11⁄2 years ago when Esai was about 141⁄2 years
old; he described Esai as “one of those kids that at the time
I thought was kind of borderline.” He had investigated Esai
“for a couple of different gang-related crimes, with gun[]
possessions and shootings,” and made “special trips to him
almost on a weekly basis . . . trying to help this kid out.”
Officer Braun was trying to keep Esai away from gang life;
Esai had “a rough upbringing” and “need[ed] a lot of assist­
ance.” Esai “expressed a large affinity for guns” and had
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shown Officer Braun “numerous pictures of guns.” Officer
Braun met with Esai 10 to 12 times over the course of a year,
talking about gang life generally and what Esai was doing.
Esai was “always very cordial, very friendly, but [was] also
a very determined young man,” meaning “hard-headed,” in
Officer Braun’s opinion. According to Officer Braun, “[N]o
matter what I was going to say, he was going to do and lead
the life that he want[ed].”
Officer Braun recalled arresting Esai a couple weeks or a
month prior to the shooting incident. He had identified Esai in
some photographs from the scene of a robbery case. Officer
Braun and another detective went to Esai’s house to talk to
him about it, and Esai was very nervous. They were able to get
permission to search the house, and they located a firearm in
the upstairs of the house.
According to Officer Braun, the Playboy Surenos gang
is a “Hispanic Surenos nationwide gang, mainly based out
of Mexico, California, here, and Memphis, Tennessee.” The
Playboy Surenos in Omaha is “a violent street gang” that has
been involved in “numerous shootings, narcotics, a lot of gun
history with that gang.” The “6500” gang “is a neighborhood
gang started here in Omaha, in the . . . Q Street region in South
Omaha.” Although only around for a couple of years, “they’ve
had a violent tendency or rivalry against Playboy Surenos, at
least at that time they did.” Officer Braun agreed that “there’s
not great blood between these two gangs.”
Officer Braun testified that Esai is a documented member
of the Playboy Surenos and has been involved in violence
related to that gang. He identified Esai in photographs (exhibit
1) taken from Esai’s Facebook account that week and pointed
out that Esai was “throwing up” a Playboy Surenos gang
sign in some of the photographs. In one photograph, Esai
and another individual “appear[ed] to be holding firearms
towards the camera,” but the firearms were “slightly blocked
out.” In some photographs, Esai was with “South Omaha
gang members.”
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On cross-examination by Esai’s attorney, Officer Braun was
asked if he thought Esai “still stands a chance to be able to
turn things around?” Officer Braun responded:
Like I said, this is my opinion, I really like the kid. He’s
very smart, very intelligent, very personable. You won’t
find a person that does not like Esai . . . . I also know
that he has an extreme affinity for guns. He’s shown me,
from his own cell phone, he’s approximately had ten
different guns between the age of 13 and 16, which is
a huge number for a child, a gentleman that age. He’s
also shown extreme affinity for the gangs and the gang
life. No matter how many times I talk to him, he hangs
around with the same guys, doing the same thing, the
same — he puts himself in these same situations that are
very dangerous.
(b) Defense’s Evidence
After the State rested, two witnesses were called by the
defense. Heather Moran, an employee with juvenile proba-
tion, testified about the different types of services available
for “high-risk youth,” such as foster care; group homes; treat-
ment group homes; psychiatric residential treatment; the Youth
Rehabilitation and Treatment Center (YRTC) in Kearney,
Nebraska; trackers; electronic monitoring; “outpatient for sub-
stance, mental health, intensive outpatient”; and services inside
the home, such as multisystematic therapy and intensive family
preservation. She noted that Esai was currently placed at the
Douglas County Youth Center.
Moran started working with Esai in February 2019 when
he was adjudicated for a charge related to visual pornography;
Esai had taken a video of two juveniles having sex and that
video was on a cell phone. But since he had been in “cus-
tody a couple times,” and “he was also on run,” Moran had
only supervised him for “about a month and a half.” Moran
explained that “on run” meant Esai left the family home with-
out permission and his electronic monitoring device “died.”
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When he did not return, a warrant was issued and was still
pending in Sarpy County, Nebraska. According to Moran, Esai
had been placed at his grandmother’s house through the court
system, but there was a “two-week point” in “late February,
beginning of March,” when he was at his mother’s house in
Omaha. Esai was not doing well at his grandmother’s house.
“He didn’t want to follow the rules. There was lots of argu-
ing.” Moran said he was “placed there at Mom’s as respite”
and kept there “while we were looking for group homes and
stuff.” Esai was arrested at his mother’s home in March for
attempted robbery, use of a gun by a prohibited person, and
tampering with evidence.
Moran testified that Esai had been offered “pretty much all
the services” available “in the community.” She had previously
started applications for a group home setting, but stopped look-
ing once he was detained on the current charges. Canyon State,
located in Arizona, is the only out-of-state group home used by
juvenile probation. According to Moran, a crime of violence
does not preclude acceptance into a group home. Moran said
that commitment to YRTC had not yet been offered to Esai.
Moran discussed programming at YRTC, such as therapy or
treatment for “substance or mental health” and “some cognitive
behavioral groups.” She mentioned aggression replacement
training and moral reconation therapy. Moran described Esai
as always being polite, “never had any issues with disrespect,”
but he has “struggled with following a lot of the rules that we
put down.” When asked whether there were services within the
juvenile court system from which Esai could benefit, Moran
responded, “I’m not sure, to be honest.” If Esai was transferred
to juvenile court, Moran intended to recommend YRTC. She
was not sure Esai would benefit from YRTC; it would be “up
to Esai on that part.” Moran agreed that there are services
available to Esai at YRTC which would not otherwise be avail-
able to him in adult court. She also agreed that given the cur-
rent charges, there were no in-community services available
to Esai. If the case was moved to the juvenile court, Moran
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would be recommending YRTC. She did not think any group
homes in Omaha would accept Esai given the current charges.
An out-of-state group home, such as Canyon State, might be an
option, but “it would be up to [Canyon State]” if it would take
someone or not. Even if a court ordered that Esai go to Canyon
State, it would be up to Canyon State “whether they take a
youth into their program or not.” Moran worked with a few
juveniles accepted to Canyon State, but the charges involved
were lesser charges than those against Esai. Moran responded
affirmatively when asked by the district court whether Canyon
State dealt with gang prevention.
Esai’s grandmother testified; she is Esai’s legal guardian.
Esai had lived with her since he was about 3 years old, and
she became his legal guardian in 2007. The grandmother said
that Esai’s mother had “drug problems” and that Esai’s father
was deported to Mexico when Esai was 8 years old. According
to the grandmother, Esai had been a “straight A student, honor
roll,” until he got in trouble in high school. She felt his behav-
ior changed after the death of her husband, Esai’s grandfather,
in October 2015. The grandmother had been having problems
with Esai for about 2 years. If Esai did not get what he wanted,
“he would get disrespectful” with her. As an example, if she
told him to clean his room, Esai would respond, “No, I ain’t
gonna.” Esai was never violent toward his grandmother, but
he had difficulties with rules related to curfews. When he was
about 14 years old, Esai started meeting new friends in high
school who the grandmother did not think “were a very good
influence on him.” Esai started high school at one school but
had to leave and attend another high school because he was
getting into trouble. Presently, because he was in custody
at the Douglas County Youth Center, he was attending yet
another school.
(c) Closing Arguments
In closing arguments, the State noted that under Neb. Rev.
Stat. § 43-276 (Supp. 2019), “there are several factors the
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Court must consider when determining whether to transfer
a juvenile . . . to Juvenile Court.” The State listed a number
of those factors: violence, motivation, the juvenile’s age and
the age and circumstances of others involved in the offense,
the juvenile’s history, public safety, the juvenile’s best inter-
ests balanced against public safety, the amount of time left
before the juvenile ages out of juvenile court at age 19, prior
gun charges or convictions, prior juvenile court orders, and
whether the juvenile is a member of a street gang. The State
pointed out that “almost the majority” of the factors “are
checked off in this circumstance.”
The State emphasized the presence of violence and moti-
vation for the offense, but conceded (with regard to the Pine
Street shooting incident) that “none of the shooters in these
cases believed the officers to be officers, they believed them
to be opposing gang members.” However, the State argued
this “still shows violence and it still shows their motivation
is to shoot at other gang members.” The State further argued,
“It’s not self-defense type of violence. It’s not violence that
otherwise could be explained.” The State added, “This was the
worst kind of violence, which leads to many of the homicides
and many of the gun violence we have in Omaha.”
The State directed the district court to the exhibits, gener-
ally noting Esai’s juvenile history: Esai took his grandmother’s
vehicle and left without her permission in July 2017; Esai
shoplifted at a department store in October 2017 and was cited;
Esai and others stole a vehicle from a high school parking lot
in March 2018; Esai was charged with assault for an incident
where he “hopped out” of a vehicle and started punching a
victim who was jogging in August 2018; and Esai was charged
with armed robbery in March 2019. And while the present
charges were pending, Esai engaged in criminal imperson-
ation, as well as engaged in assault by a confined person. The
assault occurred at the Douglas County Youth Center where
Esai was being detained; according to the State, Esai grabbed
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a 34-year-old worker by the hair, pulled her backward, and
attempted to steal her cell phone.
The State urged retention in adult court because “we need
longer to have a thumb on Esai.” The State noted that there
was a limited amount of time services could be offered through
the juvenile court and that some of the same services avail-
able at YRTC could be offered in the district court whether
he was placed on probation or placed in custody. The State
indicated, “There’s nothing that says this Court couldn’t send
him to Canyon State if he’s put on probation on this case at
some point.”
On the other hand, defense counsel argued that although
Esai does have multiple juvenile offenses, these problems only
began in the last 2 years or so. Defense counsel attributed
the problems with the death of Esai’s grandfather, who had
been the “one father figure role” in Esai’s life. At the same
time, Esai was transitioning into high school where he hung
out “with the wrong people.” And specifically with regard to
the shooting incident involving the detectives, defense coun-
sel argued that “these young men were . . . scared for their
lives. And while . . . it’s due to potential gang involvement,
the fact of the matter is . . . this was not something they were
doing as aggressors. . . . One of them had just been shot . . .
weeks before. . . . [T]hese are teenagers, and they’re making
poor decisions.”
Defense counsel also suggested that all juvenile court serv­
ices had not yet been exhausted, “including those which spe-
cifically can address gang involvement for youths.” He said,
“[T]he application process for him to even explore group
homes has not been exhausted.” Defense counsel argued that
Esai “does understand how serious this is, and it’s kind of been
a reality check, especially being in custody.” Defense counsel
acknowledged that “there were some poor decisions made,” but
reasoned that was “partially due to the fact that he is only 16
years old,” and stated that 2 years “would be a lot of time for
him to participate in services.”
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(d) District Court’s Verbal
Findings and Decision
Immediately following closing arguments, the district
court stated:
[Esai], I’m sure, as you’re sitting there, you do not
want to hear a lecture from me, because I’m sure you’ve
heard enough of them, but I want to be real clear that this
is not cool, because I see where this is going. It’s basi-
cally only two options, the way you are going, you’re
either going to be out of the gang or you’re going to be
the leader of the gang, because you’re not a follower.
You’re not one influenced by others. You’re going to
lead the gang, or you’re going to be out, there is no
in-between, because you are not a follower. You’re too
smart for that, and you know the game, and you know
where this is going.
And in weighing all of the factors, this goes back and
forth with you. Obviously, it’s not in your best interests to
be in adult court, and if there’s any chance that you could
be saved, then it would not be in society’s best interests
that you be in adult court. And in my opinion, the only
service that could possibly help would be Canyon State.
I think [Esai] needs to be put out of Nebraska. I think he
needs to be — It’s the only possible way. He needs to be
shipped to Canyon State and see if there’s any way they
can help him save himself.
The State suggested that before the district court made a
final decision, it could order an application to Canyon State
and see whether it would or would not accept Esai. The
State inquired of the court, “If Canyon State’s not going to
accept him, I think wouldn’t that change your thoughts?” The
court replied:
I guess if Canyon State doesn’t accept him, we’re prob-
ably even in more trouble, because I think just being
16 years old, I just don’t think that our prison system is
going to benefit him at 16 years old.
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I mean, there’s — The Court believes that it’s in the
— weighing the factors, it’s in the overall best interests
that the Juvenile Court get jurisdiction over him and that
the Court wants to make sure that the Juvenile Court
knows that this Court recommends that he be sent to
Canyon State, that an application be made and that he be
sent to Canyon State. So the Court is going to grant the
Motion to Transfer to Juvenile Court and wants either
defense counsel or [the State’s counsel] to at least make
sure that the Courts — my recommendation is submitted
to the Juvenile Court, and that’s going to be the order of
the Court.
3. District Court’s Orders
On November 21, 2019, the district court entered the same
order in both cases. The order noted the hearing on the motion
to transfer held that day, and then stated, “Evidence was
adduced and after having considered the criteria set forth in
Neb. Rev. Stat. §43-276 (Reissue 2004), and for the reasons
stated in open court, [Esai’s] motion to transfer this case to the
[juvenile court] is hereby sustained.”
The State appealed in each case, and we have consoli-
dated the appeals for disposition. Any references to either
party’s brief in this opinion shall be to the briefs filed in case
No. A-19-1121.
III. ASSIGNMENTS OF ERROR
The State contends in both cases that the district court
abused its discretion in transferring the matter to juvenile court
(1) without first reading and considering the police reports
related to the investigation of the crimes charged and (2) by not
sufficiently making the required findings pursuant to § 43-276.
The State also claims the district court abused its discretion
(3) because a sound basis existed for retaining the matter in
the district court and denying the motion to transfer to juve-
nile court.
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IV. STANDARD OF REVIEW
[1,2] A motion to transfer a pending criminal proceeding to
the juvenile court is reviewed for an abuse of discretion. State
v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018). 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 conscience, reason, and evidence.
State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
V. ANALYSIS
1. Jurisdiction
When a juvenile seeks to transfer a criminal case from adult
court to juvenile court, Neb. Rev. Stat. § 29-1816(3)(c) (Cum.
Supp. 2018) provides that “[a]n order granting or denying
transfer of the case from county or district court to juvenile
court shall be considered a final order for the purposes of
appeal.” Section 29-1816(3)(c) further states that upon entry of
such an order, “any party may appeal to the Court of Appeals
within ten days.” On November 21, 2019, the district court
entered orders in both cases granting Esai’s motions to trans-
fer his cases to juvenile court, and the State filed its notice of
appeal in each case on November 25; the State’s appeal in each
case is timely.
2. Motion to Transfer to Juvenile Court
(a) Legal Framework
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants con-
current jurisdiction to the juvenile court and the county or
district court 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 of the allegations against Esai in
both cases put him within this category of juvenile offenders,
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and in both cases, the State filed the charges against Esai in the
district court.
When an alleged offense is one over which both the juvenile
court and the criminal court can exercise jurisdiction, a party
can move to transfer the matter. For matters initiated in crimi-
nal court, a party can move to transfer to juvenile court pursu-
ant to § 29-1816(3). In the instant case, when Esai moved to
transfer his cases to juvenile court, the district court conducted
a hearing pursuant to § 29-1816(3)(a), which requires consider-
ation 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 vic-
tim or juvenile agree to participate in restorative justice;
(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 fire-
arm; (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.
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The customary rules of evidence shall not be followed at
a juvenile transfer hearing and, “[a]fter considering all the
evidence and reasons presented by both parties, the case shall
be transferred to juvenile court unless a sound basis exists
for retaining the case in county court or district court[.]”
§ 29-1816(3)(a).
[3-5] As the Nebraska Supreme Court has explained, in
conducting a hearing on a motion to transfer a pending crimi-
nal case to juvenile court, the court should employ “a balanc-
ing test by which public protection and societal security are
weighed against the practical and nonproblematical rehabilita-
tion of the juvenile.” State v. Stevens, 290 Neb. 460, 465, 860
N.W.2d 717, 725 (2015). “In order to retain the proceedings,
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.” Id.
“The burden of proving a sound basis for retention lies with
the State.” Id.
(b) Evidence
We have set forth above the testimonial evidence and argu-
ments presented at the hearing on Esai’s motion to transfer.
One of the errors assigned by the State on appeal is that the
district court abused its discretion by not first reading and
considering “all of the evidence adduced by the State to sup-
port retention of the crimes charged in District Court.” Brief
for appellant in case No. A-19-1121 at 15. This alleged error
stems from the district court, which rendered a decision before
reviewing the exhibits submitted at the hearing.
[6] In State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260
(2018), the State made the same argument related to the district
court, which did not first review approximately 141 pages of
police reports offered into evidence. In that case, as occurred
here, the district court immediately proceeded to render its
findings and decision after closing arguments. The Nebraska
Supreme Court pointed out that § 29-1816(3)(a) requires the
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trial court to consider all the evidence and reasons presented
by both parties before a case may be transferred to juvenile
court. It therefore concluded that the district court erred by
failing to review and consider the police reports offered by
the State. However, the Nebraska Supreme Court also noted
that our harmless error jurisprudence recognizes that not all
trial errors result in reversal; it is only prejudicial error which
requires a reversal. State v. Tyler P., supra. When determining
whether an alleged error is so prejudicial as to justify rever-
sal, courts generally consider whether the error, in light of
the totality of the record, influenced the outcome of the case.
Id. The Nebraska Supreme Court concluded that although the
police reports provided detailed information, the facts set forth
in the reports were similar in nature to the allegations in the
information and the facts recounted by witness testimony, and
that thus, “the error of not reviewing the police reports, in light
of the totality of the record, did not influence the outcome of
the case.” Id. at 973, 911 N.W.2d at 269-70.
For the most part, the same can be said about Esai’s cases
before us. The State does not direct us to anything specific in
the exhibits which might have influenced the district court’s
decision to transfer the cases to juvenile court. The exhib-
its consist of six photographs (exhibit 1) taken from Esai’s
Facebook account, all of which were discussed during the
hearing, and approximately 273 pages of juvenile court records
and law enforcement reports (exhibits 2 through 12). Briefly
summarized, the exhibits were as follows: exhibit 2 includes
court documents related to Esai’s juvenile adjudication for
the visual depiction of sexually explicit conduct in September
2018; exhibit 3 includes court documents related to Esai’s
juvenile adjudication for stealing a car in March 2018; exhibit
4 consists of a “Person Profile Selection Screen” and a “Past
Record Selection Screen”; exhibit 5 is an “NCJIS Nebraska
Criminal History” printout; exhibit 6 contains law enforcement
documents related to Esai’s grandmother, who filed a missing
juvenile report and notified police in July 2017 that Esai left
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the residence with her vehicle without her permission; exhibit
7 contains law enforcement documents related to Esai’s shop-
lifting incident at a department store in October 2017; exhibit
8 contains law enforcement documents related to a car that was
stolen out of a school parking lot in March 2018 (for which
Esai was adjudicated); exhibit 9 contains law enforcement
documents related to a July 2018 incident involving a 16-year-
old victim who was jogging when a vehicle pulled up and Esai
jumped out of the vehicle and attempted to punch the victim;
exhibit 10 contains law enforcement documents related to an
assault and attempted robbery involving Esai in March 2019;
exhibit 11 contains law enforcement documents related to
Esai’s criminal impersonation charge; and exhibit 12 contains
law enforcement documents related to Esai’s assault of the
Douglas County Youth Center employee. All of the incidents
discussed in the exhibits were either mentioned in the course of
witness testimony or were otherwise briefly referred to by the
State in its closing argument.
We will set forth the details contained in exhibits 10, 11,
and 12, since these documents involve incidents close in time
to the June 2019 offenses charged in the present cases, and
although mentioned in the State’s closing argument, there was
limited or no testimony regarding each incident.
Exhibit 10 provides details related to a March 2019 incident
which took place just months before Esai’s involvement in the
two June incidents at issue in the present cases. Exhibit 10
contains documents related to an assault and attempted rob-
bery of a 16-year-old victim that took place on March 3. An
investigation that day revealed that Esai was at the scene of the
crime based on his “GPS ankle monitor.” When police arrived
at Esai’s mother’s house, where he was living at the time,
Esai’s mother told him to come downstairs because the police
were there. The officers heard something drop to the floor, fol-
lowed by a person running down a hall and then drawers being
opened. Esai came down the stairs breathing fast and appearing
very nervous. He told his mother not to sign anything and not
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to let the officers conduct a search. After Esai was removed
from the residence, his mother gave her consent for the officers
to search the residence. A “Smith and Wesson M&P 40” black
handgun had been tossed behind some large wooden drawers
that opened into attic space in the upstairs area occupied by
Esai. Esai was booked for attempted robbery, use of a firearm
to commit a felony, felon in possession of a firearm, and tam-
pering with evidence.
L.G., another suspect in the March 2019 assault and
attempted robbery, was questioned; Esai was then questioned
based on information provided by L.G. Esai began by talking
about having the firearm that was found at his house since
August 2018. According to Esai, he had “‘jacked it from
some white guy from Iowa.’” He claimed that on March 3,
L.G. picked him up, along with two others who Esai would
not name. Esai had not met the victim before but knew him
through Facebook. Esai knew the victim had an “I phone X”
that Esai wanted to take in order to resell it for money. Esai
called the victim and told him they would pick him up. After
the victim got in the car, Esai pulled out his firearm, pointed
it at the victim, and told him to give Esai the cell phone. The
victim denied having it, so Esai started to check the victim’s
pockets. When the victim “clinched up” and refused to give
up the cell phone, Esai punched him twice with his fists.
When the victim still refused to give Esai the cell phone, Esai
hit him five to six times with the firearm. L.G. stopped the
car and told the victim to get out. According to Esai, no one
else in the car knew what was going to happen. Esai gave
permission to search his cell phone but would not provide
his passcode.
Exhibits 11 and 12 both relate to incidents involving Esai
after the commission of the June 2019 offenses. Exhibit 11
contains documents pertinent to the criminal impersonation
charge filed against Esai. As previously noted, Esai could not
be located after the June 19 shooting incident on Pine Street.
On July 30, two police officers drove past two juveniles
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walking alongside a street, and when one of the officers looked
in the rearview mirror, he observed a “Hispanic male” reach
into his waistband. The officers turned their vehicle around,
and the person who had been reaching into his waistband,
Esai, took off running. He was subsequently caught and hand-
cuffed. Esai first refused to identify himself, but then gave
the name of another person who was about the same height
and weight as Esai. Esai was asked who his guardian was,
and Esai gave the correct guardian’s name and address for the
named individual. The officer released Esai, since he thought
Esai was who he claimed to be and the officer did not find
anything of evidentiary value. At that time, Esai was in the
law enforcement system with several felony warrants related
to the June incidents. On August 1, Esai was located by the
fugitive task force and was taken into custody. According to
a police report, Esai admitted that “he lied about his name to
avoid capture and was laughing about the incident.” Esai was
then booked at the Douglas County Youth Center for crimi-
nal impersonation.
Exhibit 12 reveals a discrepancy regarding Esai’s assault
of a staff member on October 6, 2019, at the Douglas County
Youth Center where Esai was being detained. The State argued
in closing argument that Esai had grabbed a staff member by
the hair. Exhibit 12 reflects that Esai approached a staff mem-
ber from behind while she was sitting in a chair at a desk near
his cell. He pulled her radio out from her holster and threw it
on the ground. He then grabbed both of her arms, forcefully
pulling her arms straight back and dragging her backward
in her chair toward his cell. He hollered out to two other
detainees (identified as documented members of the Playboy
Surenos gang), one of whom tried to cover a camera with a
wet paper towel, and then took the staff member’s cell phone
from her bag. The cell phone was subsequently dropped on a
table when the staff member called for help. All three juveniles
involved refused to speak about the assault.
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Exhibits 10, 11, and 12 show an escalation in Esai’s behav-
iors in 2019 despite past intervention and efforts to rehabili-
tate him through the juvenile court system throughout 2018.
These exhibits, along with the juvenile court records (exhibits
2 and 3), provide more detailed insight into Esai’s escalat-
ing behaviors, along with his capacity, or lack thereof, to be
rehabilitated. It is a concern that the district court did not
review these exhibits, nor make any reference to them what-
soever in its findings, before making its decision to transfer
the cases to juvenile court. As the Nebraska Supreme Court
concluded in State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260
(2018), we likewise conclude that the district court erred by
not reviewing all the evidence received at the hearing before
rendering a decision. See § 28-1816(3)(a) (after considering
all evidence and reasons presented by both parties, case shall
be transferred to juvenile court unless sound basis exists for
retaining case).
However, based on the district court’s statements that “our
prison system” was not going to benefit Esai at 16 years
old and that it was in Esai’s best interests for the juvenile
court to have jurisdiction over him, we also conclude that
the district court’s review of the additional information con-
tained in the noted exhibits would not likely have changed
the district court’s decision to transfer the cases to juvenile
court. The district court was focused primarily on Esai’s
age and his need to be removed from Nebraska and sent to
the group home in Arizona. The district court’s review of
the exhibits would not likely have changed the decision it
had already made after hearing the testimony and arguments
presented at the hearing. So although it was error to not
review the exhibits, we cannot say that by itself, the district
court’s decision to not review the exhibits constitutes revers-
ible error. The issue really comes down to whether the dis-
trict court’s reasons for granting the transfer in both cases,
in light of all the evidence presented, constituted an abuse
of discretion.
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(c) District Court’s Reasons
for Granting Transfer
The State assigns as error that the district court did not con-
sider or make sufficient findings pursuant to § 43-276. Once
again, this same argument was made in State v. Tyler P., supra.
In that case, and like both cases on appeal here, the district
court’s order merely set forth that after considering all the
factors of § 43-276 and for the reasons stated in open court,
the defendant’s motion to transfer was sustained. “Without
more, the order would not permit meaningful review by this
court.” State v. Tyler P., 299 Neb. at 971, 911 N.W.2d at 268.
However, the Nebraska Supreme Court noted that in the dis-
trict court’s oral findings in State v. Tyler P., supra, the district
court said it had weighed the factors in § 43-276(1) and bal-
anced them with the safety of the public. The district court
in that case specifically referenced relevant statutory factors,
“including the motivation behind the offense, the juvenile’s
previous criminal history, the juvenile’s ability to appreciate
his conduct, the best interests of the juvenile, and the safety
of the public.” State v. Tyler P., 299 Neb. at 971, 911 N.W.2d
at 269. The Nebraska Supreme Court stated that “though it
would have been preferable for the district court to refer to all
the statutory considerations, the statute does not require it to
do so.” Id.
In the present cases, the district court verbally stated to
Esai at the close of the hearing that “in weighing all of the
factors, this goes back and forth with you.” It noted that it
was not in Esai’s best interests to be in adult court, “and if
there’s any chance that [Esai] could be saved, then it would
not be in society’s best interests that [he] be in adult court.”
The district court said that “the only service that could pos-
sibly help would be Canyon State” and that Esai “needs to be
put out of Nebraska” and “shipped to Canyon State” to “see
if there’s any way they can help him save himself.” When it
was suggested by the State that it first be determined whether
Canyon State would accept Esai, the district court stated, “I
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guess if Canyon State doesn’t accept him, we’re probably even
in more trouble, because I think just being 16 years old, I just
don’t think our prison system is going to benefit him at 16
years old.” The district court further stated, “[I]n . . . weighing
the factors, it’s in the overall best interests” that the juvenile
court have jurisdiction and for that court to know the district
court was recommending that Esai be sent to Canyon State.
The district court directed that either attorney “make sure” its
recommendation was submitted to the juvenile court.
It would appear that of the 15 considerations set forth in
§ 43-276(1)(a) through (o), the district court found the follow-
ing three factors to weigh in favor of transferring Esai’s cases
to juvenile court: (a) type of treatment Esai would most likely
be amenable to (Canyon State rather than prison), (d) Esai’s
age (16), and (f) Esai’s best interests. The district court did not
engage in any discussion or balancing of the other consider-
ations set forth in § 43-276(1).
[7] As stated in State v. Tyler P., 299 Neb. 959, 911 N.W.2d
260 (2018), it would have been preferable for the district
court to refer to all the statutory considerations listed in
§ 43-276(1); however, the statute does not require it to do so.
And although the district court did not address every factor
contained in § 43-276(1), it did identify the factors it deemed
persuasive, namely, Esai’s age, his best interests, and his
possible treatment through Canyon State. Therefore, because
§ 43-276(1) does not require the district court to do so, we
cannot say that the district court abused its discretion by fail-
ing to address every factor in the statute. See State v. Tyler P.,
supra. However, the district court’s failure to address certain
factors does impact our analysis of whether the district court
abused its discretion in transferring the cases to juvenile court
given the evidence before it.
3. Was Transfer Abuse of Discretion?
We first reiterate that it is the State’s burden to prove that
a sound basis exists to retain the proceedings in district court.
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See State v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015).
The State argues that the majority of the factors set forth in
§ 43-276 support retaining Esai’s cases in the district court:
The extreme level of violence, the obvious public safety
concerns, [Esai’s] motive, his age at the time of the
offense, his documented membership in a violent street
gang, his lengthy history of crimes of violence involving
firearms, previous adjudications in juvenile court, and
[Esai’s] lack of amenability to services available through
the juvenile court system all support retaining this matter
in adult court.
Brief for appellant in case No. A-19-1121 at 21.
(a) Factors Favoring Retention
We agree with the State that the majority of the factors
set forth in § 43-276(1)(a) through (o) favor retaining juris-
diction in the district court with regard to both cases. We
count at least eight factors set forth in § 43-276(1) which
favor retention, and which the district court did not spe-
cifically discuss. These factors include: § 43-276(1)(b)—the
alleged offenses in both cases involved violence, including
the use of firearms (in A-19-1120, victim was shot in leg
causing serious injury, and in A-19-1121, law enforcement
personnel and intern were subjected to unprovoked gunfire);
§ 43-276(1)(c)—the motivation for the crime in case No.
A-19-1120 was an intentional set up to steal marijuana from
the victim, and the motivation in case No. A-19-1121 was to
show an aggressive stance as a gang associate by shooting
at an unknown vehicle and endangering lives, not in self-
defense, but based upon what was perceived as a possible
threat from a rival gang despite the lack of any provocation
from anyone in the vehicle; § 43-276(1)(e)—Esai’s previous
history includes two separate adjudications in juvenile court
which show repeated problems with compliance with court
orders; § 43-276(1)(g)—the consideration of public safety
weighs in favor of retaining jurisdiction over Esai for a longer
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period of time than the 2 years remaining in his minority
(Esai will be 19 years old in April 2022), and a longer period
of control and supervision appears necessary to ensure Esai’s
separation from gangs and firearms given the lack of progress
made through the juvenile court system despite efforts in the
course of Esai’s two prior adjudications; § 43-276(1)(h)—
Esai’s ability to appreciate the nature and seriousness of his
conduct is questionable (i.e., laughing about his act of crimi-
nal impersonation), and his violent tendencies appear to be
escalating despite intervention measures in the juvenile court
system, including Officer Braun’s direct efforts to discour-
age Esai from his ongoing gang affiliation; § 43-276(1)(i)—
Esai’s best interests and the security of the public require
that Esai continue in secure detention or under supervision
for a period extending beyond his minority, and as argued by
the State, this could be accomplished by a 5-year probation
term which could include a recommendation for placement
at Canyon State; § 43-276(1)(l)—Esai has acknowledged
the unauthorized use or possession of a firearm on mul-
tiple occasions; and § 43-276(1)(n)—Esai is a documented
gang member.
(b) Factors Favoring Transfer
As previously noted, the district court verbally discussed
the following three factors when ruling from the bench that
it was granting the motion to transfer: Esai’s age, his pos-
sible placement and treatment at Canyon State, and his best
interests (based on adult prison not benefiting Esai given his
age). And because the district court stated in its November 21,
2019, order in both cases that it had considered the criteria set
forth in § 43-276, it necessarily found that these three factors
were substantively weighty enough to outweigh any one or
combination of the remaining factors, which the court did not
discuss at all. We will first address the district court’s empha-
sis on Esai’s age, and we will then address Canyon State and
Esai’s best interests together.
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(i) Esai’s Age
The district court placed considerable emphasis on the fact
that Esai was only 16 years old, which is understandable.
However, a young age by itself does not support a transfer
to the juvenile court. There have been a number of cases
involving juveniles the same age or younger than Esai in
which criminal proceedings were retained in the district court
because other factors related to public protection outweighed
the juvenile’s young age, such as involvement with gangs and
guns, the unlikely success of rehabilitation before the juve-
nile reaches the age of majority, prior juvenile adjudications,
or the violent nature of the crime. See, e.g., State v. Hunt,
299 Neb. 573, 909 N.W.2d 363 (2018) (15-year-old defend­
ant associated with gang charged with crimes of violence
involving guns; defendant posed serious risk to community
and there was no guarantee defendant would be accepted
into group home given second episode of seriously violent
offenses within 9-month period); State v. Stevens, 290 Neb.
460, 860 N.W.2d 717 (2015) (15-year-old defendant with
gang involvement struck victim in face with gun and took vic-
tim’s vehicle and cell phone; defendant previously adjudicated
at age 13 and failed to take advantage of treatment options);
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015)
(15-year-old defendant involved in same crime as in State v.
Stevens, supra; this defendant had been in secure detention at
least four times, had run away three times, had escaped from
YRTC, and was previously adjudicated for two assaults and
various criminal mischief violations); State v. Goodwin, 278
Neb. 945, 774 N.W.2d 733 (2009) (14-year-old defendant
fired shots which killed 6-year-old child sitting in car; defend­
ant had history of behavior problems at home and in school,
used marijuana daily and alcohol periodically, and absconded
from group home; violent nature of crime, defendant’s previ-
ous history of violent and aggressive behavior, and defend­
ant’s failure to respond positively to corrective treatment
all supported retaining jurisdiction in district court); State v.
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Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993) (15-year-old
defendant fatally shot man); State v. Doyle, 237 Neb. 944,
468 N.W.2d 594 (1991) (15-year-old defendant and coperpe-
trator burglarized pawn shop, took guns and ammunition, and
then stole van and went to shopping mall where coperpetra-
tor pointed loaded gun at victim in attempt to rob victim of
her vehicle).
The facts present in the two cases before us do not support
that Esai’s age, by itself, outweighs the numerous other factors
which support retention.
(ii) Canyon State and Best Interests
It is evident the district court determined that Esai’s best
interests would be best served by keeping him out of the adult
corrections system and instead having him placed at an out-of-
state group home, Canyon State. Undoubtedly, every juvenile’s
best interests would be better served by attempting rehabilita-
tion in the juvenile court system rather than being sentenced
to a term of imprisonment in the adult corrections system.
And to the extent the evidence demonstrates a likelihood of
successful rehabilitation before the juvenile reaches the age of
majority, then these factors may very well be so substantially
weighted as to outweigh the numerous other considerations
favoring retention for public safety concerns. The problem
here, though, is that the record establishes that all rehabilita-
tive efforts offered through the juvenile court in 2018 and 2019
cannot be characterized as nonproblematical given Esai’s ongo-
ing unlawful behaviors and his continued disregard for juvenile
court orders. These failures do not support continued efforts to
rehabilitate Esai in the juvenile court system, particularly given
the limited time remaining to do so.
For example, exhibit 3 reveals that a secure detention place-
ment order was entered on April 12, 2018, in one juvenile
court case involving car theft because Esai violated his “condi-
tions of liberty.” Another detention order was entered in that
case in July, noting Esai had been “placed on the H.O.M.E.
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Program in March 2018,” was detained in April for violations,
and in July, cut his monitor and absconded. The July detention
order also indicated that Esai “continues to use marijuana daily
and says, ‘He will not ever quit.’” Additionally, a capias was
issued in both juvenile court cases when Esai left his grand-
mother’s house on June 16, 2019, and his electronic monitor-
ing device “died” at the same time. Notably, this is the same
day Esai was involved in the robbery that resulted in the shoot-
ing of the victim in the leg upon Esai’s directive.
The evidence also reveals that Officer Braun had met with
Esai 10 to 12 times over the course of a year in an attempt to
keep Esai away from gang life. And despite his efforts, Officer
Braun concluded that Esai was “hard-headed” and that no mat-
ter what Officer Braun said to him, Esai “was going to do and
lead the life he want[ed].” Officer Braun stated, “No matter
how many times I talk to him, he hangs around with the same
guys, doing the same thing, . . . he puts himself in these same
situations that are very dangerous.”
Additionally, when Moran was asked whether there were
services within the juvenile court system from which Esai
could benefit, Moran responded, “I’m not sure, to be hon-
est.” Her recommendation would be YRTC, but she was not
sure Esai would benefit from that placement. Moran said that
she did not think any group homes in Omaha would accept
Esai given his charges and that it would be up to Canyon
State whether it took him or not. While the district court
did conclude that “the only service that could possibly help
would be Canyon State” and that Esai “needs to be put out of
Nebraska,” the district court did not explain how that out-of-
state group home would have any greater chance of success in
rehabilitating Esai than the efforts made by the juvenile court
services to date. Other than being physically separated from
his current gang associations, which could be helpful, there
was no evidence of how that alone would successfully reha-
bilitate Esai. Further, given Moran’s testimony, there was no
guarantee that Canyon State would accept Esai, which would
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essentially leave only YRTC as an option for Esai’s place-
ment. And even Moran was not sure that any services at YRTC
would benefit Esai.
Based on the evidence, the only remaining option through
the juvenile court besides Canyon State would be YRTC,
which is what Moran testified she would be recommending
if the case was transferred. On the other hand, in support of
retaining the case in district court, the State argued that if
Esai was “put on probation on this case at some point,” there
is “nothing that says this Court couldn’t send him to Canyon
State.” The State expressed concern about the limited amount
of time left to supervise Esai under the juvenile court’s juris-
diction, as well as the limited amount of services available.
There was no evidence as to how either Canyon State or YRTC
would be in a position to rehabilitate Esai given the limited
time left under the juvenile court’s jurisdiction. Further, there
was no evidence of the likelihood of successful rehabilitation
given Esai’s history of gangs, firearms, assaults, and noncom-
pliance with juvenile court orders.
(c) Balancing Public Safety Against
Rehabilitation of Juvenile
[8] The eight factors favoring retention outnumber the three
factors referenced by the district court in making its decision to
grant the motions to transfer. However, there is no arithmetical
computation or formula required in a court’s consideration of
the statutory criteria or factors. State v. Tyler P. 299 Neb. 959,
911 N.W.2d 260 (2018). There are no weighted factors, that is,
no prescribed method by which more or less weight is assigned
to each factor specified by statute. Id. It is a balancing test
by which public protection and societal security are weighed
against the practical and nonproblematical rehabilitation of the
juvenile. Id.
Accordingly, it is not a matter of the quantity of factors
favoring retention or transfer. Rather, the test requires con-
sideration of all the factors in light of the evidence presented,
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followed by a balancing of (1) the factors which support
retaining the case in the district court in the interests of public
protection and societal security against (2) the factors which
favor transferring the case to the juvenile court for the practi-
cal and nonproblematical rehabilitation of the juvenile. In other
words, “This means that a trial court must balance a juvenile’s
amenability to complete rehabilitation by age 19 against the
public’s safety in the event that rehabilitation fails or requires
more time than anticipated.” State v. Leroux, 26 Neb. Ct. App. 76,
118, 916 N.W.2d 903, 929 (2018). “The trial 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.” Id.
These are difficult decisions, and we can only reverse a
district court’s decision to retain or transfer a case if we con-
clude it abused its discretion. See State v. Tyler P., supra. For
sure, by count alone, there are more factors favoring retention
in the cases before us. However, it is possible that those fac-
tors in total may not be weighted heavily enough to tip the
scale against the fewer factors favoring transfer for the sake
of rehabilitating the juvenile. If the evidence underlying the
factors supporting transfer to the juvenile court is so substan-
tial as to outweigh all other considerations, then this court
could not say the district court abused its discretion by grant-
ing the transfer. However, when considering the record before
us, we conclude the evidence supporting transfer was not suf-
ficiently substantial when balanced against the considerable
evidence supporting retention. There was simply no evidence
to support that Esai could be successfully rehabilitated before
reaching age 19; although on the other hand, there was sub-
stantial evidence that Esai’s behaviors were intentional, vio-
lent, and on a path of escalation. His involvement with gangs
and firearms, as well as his assaultive actions before, during,
and after the present offenses, presents a serious danger to
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the public. Without some evidence to demonstrate that Esai
would genuinely be responsive to the remaining placement
and treatment options available under the juvenile court’s
jurisdiction, the safety of the public is a factor warranting
substantial weight.
Notably, the district court did not engage in any balancing
of public safety and societal security based on the evidence
presented, nor did it explain how Canyon State was a practi-
cal and nonproblematical rehabilitation option for Esai given
his lack of success through juvenile court services offered to
date. There was also no certainty as to whether Esai would
be admitted to Canyon State, and there was no evidence as
to how long Esai could be placed there and how any services
there might have a greater likelihood of success in rehabilitat-
ing Esai than past efforts, particularly given Esai’s escalating
behaviors. Further, the district court never addressed the secu-
rity of the public—it never explained why secure detention
or supervision would not be necessary for a period extending
beyond Esai’s minority. The district court’s focus on Esai’s
age, without also balancing the public’s safety against the
likelihood of Esai’s successful rehabilitation under the juvenile
court’s jurisdiction before Esai reaches the age of majority,
constitutes an abuse of discretion.
[9] When a district court’s basis for retaining jurisdiction
over a juvenile is supported by appropriate evidence, it cannot
be said that the district court abused its discretion in refusing
to transfer the case to juvenile court. See State v. Hunt, 299
Neb. 573, 909 N.W.2d 363 (2018). Applying that same stan-
dard here, it necessarily follows that when a district court’s
basis for granting a transfer to the juvenile court is supported
by appropriate evidence, it cannot be said that the district court
abused its discretion in granting the transfer. However, in the
two cases before us, the district court’s reasons for granting
the transfers to juvenile court were not supported by appro-
priate evidence, particularly because the district court did not
employ the requisite balancing test by which public protection
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and societal security are weighed against the practical and
nonproblematical rehabilitation of the juvenile. See State v.
Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015). There was
no evidence to support that Esai could be successfully reha-
bilitated either through Canyon State, if accepted, or through
YRTC in the remaining 2 years of his minority. Although there
was some favorable evidence, including that Esai was likable
and intelligent, there was considerably more evidence showing
an aggressive, assaultive, and violent personality which was
unyielding to others who cared about him and attempted to
redirect him on a better path. Given the substantial evidence
supporting retaining the cases in the district court for the sake
of public safety and societal security, and the lack of evidence
demonstrating any further rehabilitation through the juvenile
system would be practical and nonproblematical in the limited
time left under the juvenile court’s jurisdiction, we conclude
the district court abused its discretion in granting the transfer
of both cases to the juvenile court.
VI. CONCLUSION
For the reasons set forth above, we reverse the district
court’s orders granting Esai’s motions to transfer the proceed-
ings to the juvenile court in both cases and remand the causes
for further proceedings in the district court.
Reversed and remanded for
further proceedings.