State v. Leroux

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/17/2018 09:07 AM CDT
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STATE v. LEROUX
Cite as 26 Neb. App. 76State of Nebraska, appellee, v.
A madeus L. Leroux, appellant.
___ N.W.2d ___
Filed July 10, 2018. No. A-17-1160.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
Error. A trial court’s denial of a motion to transfer a pending crimi-
nal 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: Evidence. Under Neb. Rev. Stat.
§ 29-1816(3)(a) (Reissue 2016), after considering the evidence and the
criteria set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016), the court
shall transfer the case to juvenile court unless a sound basis exists for
retaining the case in county court or district court.
4. Courts: Juvenile Courts: Jurisdiction: Proof. In a motion to transfer
to juvenile court, the burden of proving a sound basis for retaining juris-
diction in county court or district court lies with the State.
5. Courts: Juvenile Courts: Jurisdiction. In order to retain proceed­ings
in criminal court, the court need not resolve every statutory factor in
favor of transfer against the juvenile, and there are no weighted factors
and no prescribed method by which more or less weight is assigned to
a specific factor. It is a balancing test by which public protection and
societal security are weighed against the practical and nonproblemati-
cal rehabilitation of the juvenile.
6. 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.
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Cite as 26 Neb. App. 76Appeal from the District Court for Keith County: Donald E.
Rowlands, Judge. Affirmed.
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., and Daniel R. Stockmann,
of Stockmann Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
Moore, Chief Judge, and Bishop and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Amadeus L. Leroux, age 15 at the time of his charged
offenses, appeals from the Keith County District Court’s order
denying his motion to transfer his pending criminal proceed-
ing to the juvenile court. Although more of the statutory fac-
tors set forth in Neb. Rev. Stat. § 43-276(1) (Reissue 2016)
favored transferring the case than those retaining it, the statu-
tory scheme does not provide a mathematical approach to these
decisions. Further, the statutory factors are not weighted, and
the trial court does not need to resolve every factor against the
juvenile in deciding whether to retain the case in adult court.
Finally, even if this court found the factors tipped more favor-
ably for granting the transfer, we are constrained by our stan-
dard of review. An appellate court may determine only if the
trial court abused its discretion by denying a request to transfer
the case to juvenile court, and under this standard of review,
we must affirm.
II. BACKGROUND
A complaint was filed in the county court for Keith County
by the Keith County Attorney on March 30, 2017. The com-
plaint alleged that on or about March 28, Leroux (date of birth
September 2001) intentionally committed murder in the sec-
ond degree, but without premeditation, a Class IB felony, and
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felony, a Class II felony. Leroux waived a preliminary hearing,
and the case was bound over to the district court on May 8. An
amended information was filed, and on October 9, Leroux filed
a motion to transfer jurisdiction to the juvenile court. A hearing
on Leroux’s motion took place on October 18; a summary of
the evidence adduced at that hearing follows.
1. Law Enforcement
Witness for State
Nebraska State Patrol Trooper Peter Rutherford testified that
he was on duty on March 28, 2017, and was called to inves-
tigate the death of John Fratis, who he believed was 25 years
old. Raylynn Garcia referred to Fratis as “her brother,” but they
are not biological siblings—they were raised together. Trooper
Rutherford believed Fratis had moved in with Garcia at a
home on “North Spruce” in Ogallala, Nebraska, in December
or January, “[s]o several months leading up” to the incident.
Larry Derrera also grew up in the same home as Garcia, and
they “have since moved in together and have two children
in common.”
Garcia and Derrera had gone to Colorado for a family event,
and on their way back, they brought Leroux “to come back to
Ogallala to spend some time in the area and see the lake.” Once
they arrived back in Ogallala, Garcia, Derrera, Leroux, Fratis,
and the two minor children went to the home. Derrera, Leroux,
and Fratis were drinking alcohol, and Garcia had smoked a
marijuana “blunt” with Fratis. At 2 a.m., Garcia, Derrera, and
the two children went to bed, while Leroux and Fratis remained
in the living room. A short time later, Garcia and Derrera were
awakened to the sound of fighting; Derrera saw Leroux and
Fratis “kind of wrestling around with each other in conflict.”
Derrera separated them and told them to “cool down [and] go
their separate ways.” Derrera returned to bed. He later heard
another commotion and went out to see Leroux and Fratis “in
what he believed to be the tailend [sic] of a fight.” Furniture
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had been knocked over and broken. Derrera again told Leroux
and Fratis to “chill out,” and he separated the two. (Trooper
Rutherford explained that this had been taking place over sev-
eral hours.) Fratis went outside to smoke, and Leroux headed
to the bathroom just off the kitchen.
Derrera returned to bed, but Garcia, who had also been
awakened from the commotion, assisted with the cleanup.
Garcia was “fed up . . . with the stress and fighting,” so she
started to get the two children changed into new clothes to put
them in the car. When Garcia was in the laundry room area
just off the kitchen, she heard another commotion coming from
the main living area. When she rounded the corner, she saw
Leroux standing next to Fratis with a knife in his hand. Garcia
saw Fratis grasping his side, and “[h]e made the exclamation,
What the Fuck, did you [just] stab . . . me?”
Garcia told Trooper Rutherford that she “freaked out,”
grabbed the knife, and threw it into the sink. She grabbed the
two children and took them out to the car, then returned to the
house and retrieved her marijuana in her purse. She then drove
away from the residence. Meanwhile, Derrera came out of the
bedroom and saw Fratis bleeding profusely, with blood com-
ing from his mouth and from his side. Derrera helped Fratis
out of the living room and on to the front porch. At 8:15 a.m.,
a vehicle was flagged down and the driver, who was a dentist,
transported Fratis to the local hospital.
When processing the scene, footprints were noted leaving
the residence going west along the alley just north of the resi-
dence. A few blocks away from the residence, Leroux flagged
down a passing motorist, a local Ogallala resident. Leroux
told the driver he had been in a fight with “six guys . . . over
a video game earlier that morning.” Leroux asked for a ride to
a gas station. During the ride, the driver noted that Leroux had
a “knot” over his left eye and some deep scratches on his left
hand, which corroborated Leroux’s story about the fight. Later
that day, the driver “ran into” the dentist, who told him about
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Cite as 26 Neb. App. 76picking Fratis up and taking him to the hospital. The driver
then thought about Leroux who said he had been in a fight, so
he went to the crime scene and met with Trooper Rutherford
there. That prompted Trooper Rutherford to call the gas sta-
tion where the driver had dropped off Leroux, and the gas
station clerk knew who Trooper Rutherford was describing.
The clerk said “this kid came in” and asked to borrow the
clerk’s telephone so he could call his mother. The clerk let
him make the call, and a few minutes later, “he jumped in a
car and left.”
Trooper Rutherford traced the call made by Leroux to
Leroux’s mother, and he also retrieved surveillance video
from the gas station. The video showed Leroux getting into
a vehicle with a window broken out on the driver’s side. The
video showed Leroux, who was wearing a white T-shirt, jeans,
and white shoes. According to Trooper Rutherford, the shirt in
the video “did not appear to be covered in blood.” Based on
information from local law enforcement, Trooper Rutherford
knew the vehicle was driven by Garcia. Garcia claimed she
called Leroux’s mother to let her know that Leroux had been in
a fight with Fratis and that Fratis was injured. Leroux’s mother
instructed Garcia to look for Leroux, and while Garcia was
driving around looking for him, Leroux’s mother called to tell
her Leroux was at the gas station and to pick him up and bring
him to her in Colorado. When Garcia picked Leroux up at the
gas station, Leroux “proceeded to the rear of the cargo area and
covered himself up with blankets.” Garcia drove to Sterling,
Colorado, with Leroux and the two children.
The autopsy of Fratis showed approximately six stab
wounds: one on the front of his torso, three on the left side of
his torso, and two on his back. Several of the stab wounds were
direct and deep; Fratis’ left lung was struck once, and his heart
was struck twice.
Under cross-examination by Leroux’s counsel, Trooper
Rutherford acknowledged that there was a prior assault
between Derrera and Fratis. Trooper Rutherford interviewed
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Cite as 26 Neb. App. 76Garcia twice following Fratis’ death, and he agreed she lied
to law enforcement several times on substantial things. Garcia
acknowledged in her second interview that she had “done
cocaine” in the 24 hours before Fratis’ death. Derrera had been
interviewed three times and lied to law enforcement on multi-
ple occasions. Trooper Rutherford said Derrera and Garcia had
been charged with child abuse related to the presence of drugs
in the home and the violent events that occurred with the two
children present the day of Fratis’ death.
2. Probation Officer
Witness for State
Amber Pierce, a juvenile specialized probation officer, testi-
fied that she supervises only juvenile cases. Pierce met with
Leroux because Leroux was under the age of 19 and there
was a warrant, so probation was responsible for his place-
ment. Pierce discussed the Youth Rehabilitation and Treatment
Center (YRTC) in Kearney, Nebraska, noting there was no one
currently in the YRTC with a murder conviction. There are no
special programs or services specific to a murder conviction
at the YRTC. Pierce testified that the average time a juvenile
spends in the YRTC is 7 to 9 months and that after such period,
the juvenile would be released back to the community. The
YRTC does offer therapy services, which would be equivalent
to outpatient services.
Pierce also discussed the Nebraska Correctional Youth
Facility (NCYF), which is under the Department of Correctional
Services and is a facility specific for juveniles charged and
convicted as adults. The age range of individuals jailed there
is 14 years to 21 years 10 months. Pierce testified that the
services available at the NCYF are more substantial than those
at the YRTC. She said it was her understanding that if Leroux
was convicted as an adult, he would automatically be placed
at the NCYF so long as he is under the age of 19. Pierce also
noted that if a juvenile came to Nebraska from Colorado, and
as a result of a predisposition investigation (which she said is
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ommended the juvenile go to the YRTC, the juvenile would not
be transferred back to Colorado, but would instead complete
the YRTC term in Nebraska.
On cross-examination, Pierce acknowledged that it is det-
rimental for a juvenile to be exposed to trauma and to not
receive treatment for that trauma. Pierce did not know what the
provisions are for “trauma informed care” at the NCYF, nor did
she know the ratio of mental health providers to juveniles at
the NCYF. Pierce knew there was a psychologist and two men-
tal health practitioners on staff; she did not know if they had
additional staff. Pierce said she did not know how many “kids
[were] at NCYF with that one psychologist and two [mental
health practitioners],” and when offered an estimate of several
hundred, Pierce said she did not know. After redirect examina-
tion of Pierce, the State rested.
3. Defense Witness
Tessa Frederick
Tessa Frederick is the assistant site director at a Boys &
Girls Club in Denver, Colorado, of which Leroux was a mem-
ber. The club provides afterschool programs in underserved
communities, offering “high yield activities in healthy life-
styles, character leadership and academic success, as well as
providing community support, supporting the schools around,
providing dinner, those kinds of things.” Children are eligible
to participate from age 6 through 18. Leroux participated
in service learning projects, such as raising funds and sup-
plies for the victims of a forest fire, and more recently, the
club served food to the homeless at a Denver rescue facility.
Children can be suspended or expelled from the club if they
bring a weapon or drug, if they fight, or if they are disrespect-
ful to staff.
According to Frederick, Leroux started coming to the club,
along with his older brother and younger sisters, when he was
8 or 9 years old. Leroux was a “very shy kid” and would need
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Cite as 26 Neb. App. 76to be coaxed to participate in activities. He played on sports
teams, was a member of a leadership group, and participated
in a “computer lab.” Other than for a period after the death of
Leroux’s father, Leroux was in attendance at the club “[b]asi-
cally every day.” Frederick said that Leroux’s mother “wanted
a place for her kids to go after school while she worked that
would be safe and purposeful.”
Frederick said that she got to know Leroux and his fam-
ily well and that she would “[n]ever” describe his personal-
ity as aggressive or forceful. Rather, she described Leroux as
“so quiet” and said that it took years before Leroux trusted
Frederick enough to open up to her. However, Leroux “was an
active listener” and “was engaged.” “[W]hen it came to speak-
ing out or doing a little bit more as far as the activities go,
he was just a spectator,” she said. Leroux was “a very strong
reader,” so Frederick would sometimes have him help the
younger members in the reading program. In terms of maturity,
Leroux behaved “within his age.”
Frederick testified she was not aware of Leroux doing any
traveling other than with the club. She described Leroux as a
“[v]ery normal, very average, just a normal 15-year-old.” To
her knowledge, Leroux never had a violent outburst or any
type of problem interacting socially in the club, nor had he
ever been suspended or thrown out of the club. The club is
aware of Leroux’s charges, and Frederick was not aware of any
problems with the staff or other children as a result. Leroux has
continued to go to the club where he does his homework and
“hangs out in the peace and quiet of the teen room where there
is always lots to do there, whether it’s a game or activity [that]
is going on, cooking club, that kind of thing and occasionally
staying for a teen night.”
4. Defense Witness
Dr. Joseph Peraino
Dr. Joseph Peraino, from Denver, has been a clinical psy-
chologist for over 30 years and is licensed in Colorado. He
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half spent in forensic work. About 60 percent of his time is
spent with adults, and 40 percent with teenagers. He has been
doing psychological assessments since 1978.
Dr. Peraino testified that literature indicates that for juve-
niles, trauma “actually affects their psychological, and to some
degree depending on the severity, their brain development.”
Noting that “trauma [is] a distraction for anybody,” Dr. Peraino
said it has more impact early in life because a child does not
have as much life experience. Dr. Peraino went on to state:
[S]ome children and teens will withdraw and become
depressed. Others will become highly anxious. Others
will not know what to do with their anxiety and essen-
tially act out, kind of don’t think clearly, and they act
impulsively and get in trouble. At some level it shakes
their foundation, their view of the world, and makes them
not trust others.
Dr. Peraino said that psychotherapy can be helpful and that
medication can help in extreme cases if a person is severely
anxious or depressed. Speaking more generally about brain
development, Dr. Peraino said:
The brain continues to develop until around 25 years old.
And the process of the brain maturing goes from kind of
the brain stem to the back of the brain all the way to the
front of the brain. So the last thing that develops is the
prefrontal cortex and that is where the center of judgment
is, the executive function is for individuals.
And even though you have — at a midteen level you
might find somebody who is pretty bright and kind of
knows the rules, they don’t necessarily have the judgment
to go along with that.
So we know that, for example, the teen accident rate is
very high compared to adults. They know all the rules just
as well as the adults do. But they just don’t exercise the
judgment because that part of the brain hasn’t developed
very well yet.
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Cite as 26 Neb. App. 76Dr. Peraino said that based on “longitudinal studies . . . a
small percentage of teenagers who commit crimes actually
continue to do so in adulthood. So in that sense for the major-
ity of teenagers, punishment should be secondary to treatment
or rehabilitation.” And if they are incarcerated instead, “they
don’t get the chance to experience the many aspects of the
world that they can learn” and “[t]here are extreme limits to
the aspects of life that can help them mature, grow, and psy-
chologically develop.”
As to Leroux specifically, Dr. Peraino had done a psycho-
logical assessment of him over a 2-day period at the request
of Leroux’s counsel. That assessment included interviews with
Leroux and his mother, both jointly and separately. In addi-
tion to conducting a juvenile risk assessment, Dr. Peraino
also administered psychological tests, including tests related
to intellect and academic skills, emotional intelligence, and
personality assessments. In this type of evaluation, Dr. Peraino
is looking for personality, maturity level, learning disabili-
ties, intelligence level, how the teenager processes informa-
tion, and whether recommendations of a psychological nature
are needed.
Leroux scored 86 on the “IQ tests overall,” which “falls
within the below average range.” Leroux’s “processing speed,”
or “how quickly one intakes information and outputs as a
result,” was “well below average, at the fifth percentile given
his age.” He also scored below average in verbal comprehen-
sion, while his perceptional reasoning and working memory
were within the average range. Leroux scored “significantly
higher on the academic testing, reading, word reading, sentence
comprehension, spelling . . . even math calculation problems,
computation was higher than what his IQ score would have
indicated.” According to Dr. Peraino, that “means that he learns
well. That probably the IQ score was suppressed because of
slow processing speed and somewhat verbal comprehension
as well.” Dr. Peraino stated Leroux’s reading was at the 12th
grade level, spelling was at the 11th grade level, and math was
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Cite as 26 Neb. App. 76at the 7th grade level; he is “[c]ognitively intact,” but “prob-
ably functioning a little below an average 16-year-old because
of the lower IQ score, 14, 15, in that range.”
Dr. Peraino concluded Leroux has the capability to learn, but
has some difficulty processing information quickly; Leroux is
“somebody that needs time to kind of reflect and think about
what’s going on.” Dr. Peraino described Leroux as “calm . . .
[f]riendly, engaging,” and he noted that Leroux “[k]ept calling
me bro.” Dr. Peraino was struck by Leroux’s trauma exposure
or negative events. “He has seen a video of his father being
shot and killed, being in a car accident, being attacked by dogs,
. . . a couple of uncles committing suicide[.]” Leroux indicated
to Dr. Peraino that the trauma has affected him; Dr. Peraino
thought it caused Leroux to “maintain distance from people, to
kind of disengage from the environment.”
Leroux was given a standard personality scale called the
Millon Adolescent Clinical Inventory, as well as an “emotional
IQ scale” and the “Rorschach” and “Thematic Apperception
Test.” Dr. Peraino testified that Leroux’s overall emotional IQ
“is average compared to teens his age,” but that “[h]e was ele-
vated on a scale called stress management.” This showed that
while Leroux perceives himself as being able to handle stress,
“when it comes down to it, he has difficulty, more difficulty
than the average 16- to 18-year-old male in actually coping
with that stress.” The emotional IQ tests also showed Leroux
has some difficulty establishing relationships; he scored “a
little low on his ability to make connections with other people
and maintain them.” In personality testing, Leroux scored
high in categories of “[s]ubmissive, [d]ramatizing, [e]gotistic,
and [c]onforming.” He scored “pretty low — or average com-
pared to other teens on unruliness and being oppositional.” He
scored “fairly low on being forceful, being dominating, being
aggressive, that kind of thing.” Leroux scored fairly low on
substance abuse proneness, and Dr. Peraino saw no evidence
of psychotic thinking in his assessment of Leroux. “So what
you’ve got is a picture of an individual who goes with the
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Cite as 26 Neb. App. 76flow, who is submissive, who is passive. He’s kind of depen-
dent, gives into other people usually. Coupled with sort of
maybe elevated, overconfident sense of self.”
Dr. Peraino also discussed a violence risk assessment, which
is an evidence-based test that contains a scale of 24 risk fac-
tors research has found to be predictive of whether a juve-
nile will reoffend. Leroux “scored relatively low on risk for
­reoffense. 15 of those 24 items or factors were in the low
range.” According to Dr. Peraino, these factors included:
Anger management problems, peer rejection, lack of per-
sonal social support, having attitudes of violence, grow-
ing up or living in a disorganized crime filled community,
a history of violence, a history of self-harm, exposure to
violence in the home, early initiation of violence, care-
taker disruption in life or people that go to foster, poor
parental management, substance abuse difficulties, empa-
thy, and childhood history of mental treatment. Those
were all low.
Leroux scored “moderate” for
history of nonviolent offending, past supervision inter-
vention failures. He admitted he failed a drug test when
he was on probation. Somewhat risk taking and impul-
sive, low interest in school, parent criminality. His father
was in prison. Period of delinquency, that was moderate
because he was hanging out with someone that stole a car,
and stress and poor coping.
Dr. Peraino rated Leroux “high” on two risk factors: “having
ADHD and poor school achievement.”
The violence risk assessment also includes “[p]rotective
factors,” which “are things that you would kind of defend
against a person acting out in a criminal way or unlawful
way. And those factors often include having connections with
people, having strong bonds.” Dr. Peraino testified that Leroux
“had strong bonds with his family . . . strong social support”
and that he is “currently committed to school and work.”
Dr. Peraino said that Leroux “has a positive attitude towards
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Cite as 26 Neb. App. 76intervention,” which “means he accepts help. He’s willing to
accept help. He’s willing to accept guidance. He will follow
the advice of others.” He agreed these are influential areas that
help to reduce the risk of recidivism.
Dr. Peraino diagnosed Leroux with attention deficit disorder
and post-traumatic stress disorder. The “cardinal characteriza-
tion of somebody” with attention deficit disorder includes
“inattention, impulsivity, and hyperactivity, . . . a lot of mood
variability as well. But those are the three main ones.” Leroux
was placed on medication in 2014 “to see if psychostimulant
medication would help him. And medication is the first line of
treatment for [attention deficit disorder] despite what we all
might hear.”
As for the diagnosis of post-traumatic stress disorder, Dr.
Peraino said the appropriate treatment is psychotherapy “to
try to work through the traumas and put it in perspective.”
Medication can be useful depending on whether anxiety and
depression symptoms are associated with the post-traumatic
stress disorder. Dr. Peraino testified that if Leroux received
appropriate treatment, his prognosis in terms of psychological
development “would be great.” Whereas, if he was put into a
correctional setting, “given our discussion previously about his
vulnerability, submissiveness, dependency, . . . he would be
vulnerable to learning things that are antisocial in nature. And
that would not be good for his long-term adult functioning.”
In addition to his testimony, a written report prepared by
Dr. Peraino was received over the State’s objection. We note
that in his “Conclusions and Recommendations,” Dr. Peraino
indicated that Leroux’s “underdeveloped psychological devel-
opment falls primarily in emotional areas. He appears to be
a good learner but has difficulty managing his emotions and
relationships.” Noting that Leroux has responded well in a
structured setting such as probation, Dr. Peraino said this
means that Leroux “would very likely be responsive to treat-
ment. He will need to experience a few years of a healthy
environment to re-socialize him.” The report further states
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Cite as 26 Neb. App. 76that Leroux “is at low risk for criminal recidivism based on a
well-validated measure or risk assessment” and that “[d]ue to
his positive response to probation, he would do well in a com-
munity placement.” However, upon questioning by the State at
the hearing, Dr. Peraino acknowledged that none of the infor-
mation used in his evaluation included any information related
to second degree murder and “those events.”
5. Defense Witness
Jenifer Stinson
Jenifer Stinson, a criminal defense attorney from Denver
who specializes in juvenile defense (specifically youth charged
in adult court), testified about processes and assessments used
in Colorado when dealing with juvenile offenders, as well as
services available for treatment of such offenders. The gist
of her testimony, it appears, is to support the notion that if
Leroux’s case was handled in juvenile court, there was a pos-
sibility that after adjudication the case could be transferred to
Colorado’s youth services division, which continues to provide
services for a juvenile who has been adjudicated and placed
within the system until age 21. Stinson also discussed a 2013
study which found that youth prosecuted in the adult system
instead of the juvenile system were 34 percent more likely
to recidivate.
Stinson and/or her law firm partner have been working with
Leroux’s family for the past couple of years; Stinson was rep-
resenting Leroux in Colorado proceedings. Stinson discussed
Leroux’s 2016 adjudication in Colorado where he pled guilty to
obstructing a peace officer, a “Class 2 Misdemeanor.” He was
sentenced to probation. When the situation in Nebraska arose,
Stinson ultimately had Leroux and his mother meet her in court
in Denver to get him into custody, and she described Leroux’s
demeanor as “very quiet,” “very calm,” and “almost stoic look-
ing.” She clarified that it was not that he was not taking mat-
ters seriously, but it was “more like taking a really deep breath
before doing something that’s really hard.”
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Cite as 26 Neb. App. 76Stinson testified about the standard terms and conditions
of juvenile probation in Colorado, which included being law
abiding, attending school, having no school discipline prob-
lems, and being subject to alcohol and drug testing at any time.
Stinson said that within the last month or two, Leroux’s proba-
tion officer had stopped urine testing for Leroux because he
had been compliant for a significant period of time. A Colorado
warrant was filed due to Leroux’s failure to comply with pro-
bation (leaving jurisdiction without permission), and then a
motion to revoke probation was filed.
Leroux’s Colorado case is being held in abeyance pend-
ing the disposition of the Nebraska case. Meanwhile, Leroux
has been living at home with his mother, attending school
online, and attending Boys & Girls Club. Stinson noted that
since Leroux has been charged in Nebraska, there has been
no change to the terms of his Colorado probation. And even
though probation has the ability to use on Leroux an “ankle
monitor, either electric home monitoring [or] GPS tracking,”
the district attorney had not asked for that.
6. District Court’s Order Denying
Transfer to Juvenile Court
On October 27, 2017, the district court entered an order
denying the motion to transfer the case to juvenile court. The
court acknowledged that § 43-276 requires the court to con-
sider 15 factors in making its decision and that the law requires
the case be transferred to juvenile court unless a sound basis
exists for retaining the case in district court. The court noted
that murder in the second degree is a Class IB felony which
carries a maximum sentence of life imprisonment and a mini-
mum sentence of 20 years’ imprisonment; the use of a deadly
weapon to commit a felony is a Class II felony, which carries
a maximum sentence of 50 years’ imprisonment, with a mini-
mum sentence of 1 year’s imprisonment. If convicted of the
deadly weapon charge, any sentence for that conviction must
be served consecutively to the other conviction. The court’s
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Cite as 26 Neb. App. 76discussion of the 15 factors contained in § 43-276 is set forth
in the analysis section of this opinion. In its summary, the dis-
trict court stated:
[W]hile a number of factors set forth above favor treat-
ing [Leroux] with psychotherapy and medication in a
juvenile facility, which would be of obvious benefit to
[Leroux], the serious nature of the charges which allege
that [Leroux] killed [Fratis] intentionally, but without
premeditation, and with a deadly weapon, require this
Court to conclude after balancing all of the factors and
findings set forth above, that the safety of the public, and
the necessity of confining [Leroux] to a secured facility
well beyond the age of 19 years, will be required if he
is convicted in this case. A sound basis thus exists for
retaining this case in district court and trying [Leroux] as
an adult. Accordingly, the Motion to Transfer to Juvenile
Court . . . should be and the same is hereby denied.
The district court did reduce Leroux’s bond to “$50,000
cash,” stating that there was no suggestion Leroux had com-
mitted any criminal offenses while out on bond and that he had
appeared for all scheduled hearings. It was noted that reducing
Leroux’s bond would allow him to continue to employ private
counsel. Finally, the court indicated that if no appeal was filed
within 10 days, Leroux and his counsel were to appear on
December 8, 2017, for a status hearing, during which the case
would be set for jury trial.
On November 6, 2017, Leroux appealed the October 27
order denying his request to be transferred to the juvenile court.
III. ASSIGNMENT OF ERROR
Leroux assigns the district court erred by denying his motion
to transfer his case to juvenile court.
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. Hunt, 299 Neb. 573, 909 N.W.2d
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Cite as 26 Neb. App. 76363 (2018). An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id.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) (Supp.
2017) 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” and that
“[u]pon entry of an order, any party may appeal to the Court of
Appeals within ten days.” This statutory amendment providing
for interlocutory appeals became effective August 24, 2017.
Leroux has properly perfected his appeal from the district
court’s denial of his motion to transfer his criminal proceeding
to the juvenile court.
2. Motion to Transfer
to Juvenile Court
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 such juveniles may
be initiated either in juvenile court or in the county or district
court. In the present case, all of the allegations against Leroux
put him within this category of juvenile offenders.
[3,4] In the instant case, when Leroux moved to transfer his
case to juvenile court, the district court conducted a hearing
pursuant to § 29-1816(3)(a), which 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
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Cite as 26 Neb. App. 76alleged offense included violence; (c) the motivation for
the commission of the offense; (d) the age of the juvenile
and the ages and circumstances of any others involved
in the offense; (e) the previous history of the juvenile,
including whether he or she had been convicted of any
previous offenses or adjudicated in juvenile court; (f)
the best interests of the juvenile; (g) consideration of
public safety; (h) consideration of the juvenile’s ability
to appreciate the nature and seriousness of his or her
conduct; (i) whether the best interests of the juvenile and
the security of the public may require that the juvenile
continue in secure detention or under supervision for a
period extending beyond his or her minority and, if so,
the available alternatives best suited to this purpose; (j)
whether the victim agrees to participate in mediation;
(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.
The customary rules of evidence shall not be followed at
a hearing on a motion to transfer from county or district
court to the juvenile court. See § 29-1816(3)(a). Under
§ 29-1816(3)(a), after the court considers the evidence in light
of the § 43-276(1) factors, the case shall be transferred to
juvenile court unless a sound basis exists for retaining the case
in county court or district court. See State v. Hunt, 299 Neb.
573, 909 N.W.2d 363 (2018). The burden of proving a sound
basis for retention lies with the State. Id.[5] As the Nebraska Supreme Court has explained, “In order
to retain the proceedings, the court need not resolve every
statutory factor against the juvenile, and there are no weighted
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Cite as 26 Neb. App. 76factors and no prescribed method by which more or less weight
is assigned to a specific factor.” Id. at 582, 909 N.W.2d at 371.
It is a balancing test by which public protection and societal
security are weighed against the practical and nonproblemati-
cal rehabilitation of the juvenile. Id.
Leroux argues that the State failed to meet its burden and
says that the focus of the district court should have been the
“[p]rospects and need for rehabilitation” rather than the pre-
sumption that Leroux committed murder. Brief for appellant at
20. Leroux quotes substantially from Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), to explain
the physical, mental, and emotional distinctions between juve-
nile and adult offenders. Roper addresses the “lesser culpabil-
ity” of a juvenile offender and notes that “[w]hether viewed as
an attempt to express the community’s moral outrage or as an
attempt to right the balance for the wrong to the victim, the
case for retribution is not as strong with a minor as with an
adult.” 453 U.S. at 571.
Leroux claims the State did not address the scientific and
sociological studies discussed by Dr. Peraino that “prove the
differences between adolescent juveniles and adults.” Brief
for appellant at 21. Leroux also contends the arguments in
favor of retaining the case in district court, which are based on
alleged community outrage and a need for retribution, should
be disregarded.
We disagree with Leroux that the district court’s reasons for
retaining jurisdiction were based on community outrage and
the need for retribution. Although we view some of the transfer
factors differently than the district court, as explained later, the
district court has the discretion to determine whether certain
factors outweigh others, and there are no weighted factors and
no prescribed method by which more or less weight is assigned
to a specific factor. Instead, all factors must be considered by
the court, and after considering all those factors, the court shall
transfer the case to juvenile court unless a sound basis exists
for retaining it. See § 29-1816(3)(a). In this case, the court
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Cite as 26 Neb. App. 76determined a sound basis to retain jurisdiction was supported
by the evidence when considering the § 43-276(1) factors.
Accordingly, we set forth the court’s findings as to each of
those factors.
3. Juvenile Transfer Factors
The district court made findings as to each of the 15 fac-
tors contained in § 43-276(1), which under § 29-1816(3)(a)
“shall be considered” at a hearing. We first summarize the
factors the district court concluded favored retaining jurisdic-
tion, followed by the factors which favored transferring the
case to juvenile court, and then the remaining factors which
were either inapplicable to this case or could not be decided.
We also summarize Leroux’s and the State’s arguments as to
these factors.
(a) Factors Favoring Retention
in District Court
The district court found four of the factors set forth in
§ 43-276(1) favored retaining jurisdiction in the district court,
namely: (a) the type of treatment Leroux would most likely
be amenable to, (b) evidence of violence, (g) consideration
of public safety, and (i) whether Leroux’s best interests and
the security of the public may require that Leroux continue in
secure detention or under supervision for a period extending
beyond his minority and, if so, the available alternatives best
suited to this purpose.
The court concluded that if convicted, Leroux would most
likely be amenable to treatment at the NCYF rather than the
YRTC. It explained that the NCYF is a male correctional facil-
ity designed for youthful offenders adjudicated as adults who
range in age from early adolescence to 21 years 10 months.
The court found:
NCYF offers anger management programs, clinical treat-
ment for depression, a high school for individuals under
18 who have not graduated from high school, as well as
college classes and various sports programs . . . . NCYF
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Cite as 26 Neb. App. 76is a secured facility. In contrast, YRTC is a non-secured
facility which may house juvenile offenders until they
reach 19 years of age, at which time the juvenile offender
must be released from custody.
The court also expressed concern that according to the juvenile
probation officer’s testimony, “no person is now or ever has
been committed to YRTC for murder” and, further, “[t]he aver-
age stay at YRTC is 7 to 9 months, and YRTC has no programs
or services for a juvenile adjudged guilty of homicide.”
As to evidence of violence, the court stated that there is evi-
dence Leroux fought with the victim several times over several
hours prior to the victim’s death and that there “is obviously
considerable evidence that the alleged offense included vio-
lence. . . . [T]he victim . . . sustained six stab wounds, which
were penetrating in nature, rather than defensive.”
Regarding public safety, the district court said, “[I]n the
opinion of the Court, [this is] the most important factor to be
evaluated in this case.” The court explained that if Leroux was
convicted, his minimum sentence for second degree murder
would be 20 years’ imprisonment coupled with a mandatory
consecutive sentence for use of a deadly weapon to commit
a felony of at least 1 year’s imprisonment. The court con-
cluded, “It is therefore obvious that if [Leroux] is convicted
in this case, any sentence will extend well into his adulthood.
[Leroux] could not be properly punished for the violent crimes
which he allegedly committed, if he were transferred to juve-
nile court.”
The court emphasized this point again when addressing
§ 43-276(1)’s factor (i), which considers whether secure deten-
tion or supervision is needed for a period extending beyond
Leroux’s minority. The court stated, “[T]he security of the
public clearly requires that [Leroux] continue in secure deten-
tion for a period greatly extending beyond his minority if he
is convicted of one or both of the crimes . . . .” The court
observed that the YRTC is the most restrictive facility avail-
able to the juvenile court and that the YRTC is not a secure
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Cite as 26 Neb. App. 76facility. The NCYF, a secure facility, could hold Leroux until
age 21 years 10 months. And the court concluded that “a
secured facility is clearly the best available alternative in the
event of Leroux’s conviction.”
(i) Leroux’s Argument
We initially note that with regard to amenability to treat-
ment, Leroux focuses on his individual amenability to treat-
ment as opposed to the district court’s focus on the facilities
and services available to treat Leroux. We discuss this distinc-
tion further when later considering whether the court abused
its discretion.
Leroux contends rehabilitation rather than punishment is
the better course for him given the evidence. As to what treat-
ment Leroux would most likely be amenable to, Leroux relies
heavily on Dr. Peraino’s testimony, describing the areas of
low, moderate, and high risk for Leroux. Leroux points out
his “protective factors of ‘strong attachment/bonds,’ ‘strong
social support,’ ‘current commitment to school/work,’ and
‘positive attitude toward intervention and authority.’” Brief
for appellant at 23. “The latter protective factor ‘means he
accepts help. He’s willing to accept help [and] guidance. He
will follow the advice of others.’” Id. Leroux also notes that
Dr. Peraino found him to be very amenable to treatment and
thought he would do well in community placement. Leroux
further states:
The record from this hearing shows that [Leroux] is in fact
doing well in community placement now: he is engaged
in schoolwork online, and spends time at Boys & Girls
Clubs, where he participates in age-appropriate activities,
receives tutoring and has the support of [Frederick], the
Club staff and other children and teens who participate in
the Club.
Id. at 24.
Leroux also directs us to the testimony of his Colorado
attorney, Stinson, who explained the options for rehabilitation
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Cite as 26 Neb. App. 76treatment in Colorado if Leroux was adjudicated in juvenile
court in Nebraska.
Leroux acknowledges that “[n]o reasonable person would
dispute that the murder of . . . Fratis included violence,” but
Leroux disputes whether he was “the murderer.” Id. at 28.
With regard to public safety, Leroux relies on the testimony
from Stinson, noting that public safety is served by adjudi-
cating juveniles in a rehabilitation-focused juvenile system
rather than in an adult correctional system. Leroux directs
us to a 2013 federal study discussed by Stinson, which indi-
cates that “‘youth who were prosecuted in the adult system
versus the juvenile system were 34% more likely to recidi-
vate if placed into the adult system,’” thus making the com-
munity less safe by putting a child into the adult system. Id.
at 32-33.
Leroux also argues that he had “not been a threat to public
safety before the stabbing of . . . Fratis; and he disputes that
he is the perpetrator of Fratis’ murder.” Id. at 33. Further,
Leroux was released on bond on May 1, 2017, and since then
has attended online classes and “resumed participation at the
Boys & Girls Clubs, whose staff and other participants know of
[Leroux’s] charges but are providing a supportive environment
for him.” Id. Leroux points out that Colorado has the ability
to obtain orders for “ankle monitors, GPS tracking and other
forms of restrictions for offenders” believed to present a risk
to public safety. Id. However, even after Leroux was charged
in this case, no Colorado court, nor Colorado juvenile proba-
tion, has requested such restrictions, despite being aware of
this case.
Finally, regarding whether Leroux’s best interests and the
security of the public may require that he continue in secure
detention or under supervision for a period extending beyond
his minority, Leroux argues that if this subsection was the
most compelling factor, “it was incumbent on [the State]
to present evidence that [Leroux] could not be rehabilitated
before the expiration of juvenile court jurisdiction.” Id. at 34.
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Cite as 26 Neb. App. 76Leroux contends that the evidence shows he is doing well on
probation and that no new restrictions have been placed on
him. Leroux also submits that there was no evidence presented
that Leroux “represents an ongoing threat to the public.” Id.
at 40.
(ii) State’s Argument
The State points to Pierce’s testimony that the scope of
serv­ices offered at the NCYF are more substantial than those
at the YRTC. As for consideration of Colorado’s youth resi-
dential facilities, the State says the district court’s decision to
disregard such services is supported by the record. The State
directs us to Pierce’s testimony that, hypothetically speaking,
in the case of a juvenile from another state who is adjudicated
in Nebraska, if more than 90 days of supervision remain,
juvenile probation supervision would be transferred to the
juvenile’s home state. However, “a juvenile from Colorado
who was recommended confinement in a juvenile facility
would complete that sentence in Nebraska.” Brief for appel-
lee at 12. “The record does not suggest that confinement in
a secure Colorado facility would be available to be ordered
by the juvenile court in Nebraska in connection with this
case.” Id.
Regarding violence, the State contends that “[t]he district
court is not asked to evaluate whether there is evidence that the
defendant committed violence,” but, rather, it must consider
whether there is evidence that the alleged offense included
violence. Id. at 13. There was evidence of the stabbing in this
case; therefore, the State contends it was appropriate for the
court to determine that this offense included violence.
Regarding public safety, the State combines its argument
for § 43-276(1)’s factors (g) and (i). The State points out the
district court’s determination that the YRTC did “not have
secure enough facilities or lengthy enough jurisdiction over
Leroux to ensure public safety.” Brief for appellee at 15. The
YRTC is the most restrictive facility available to the juvenile
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Cite as 26 Neb. App. 76court, and it is not a secure facility. The State argues it was not
an abuse of discretion for the court to determine that “public
safety would require a person convicted of the violent crimes
in this case to be secured beyond Leroux’s minority.” Id. The
State contends that “the factors do not require the district court
to speculate upon Leroux’s guilt or innocence” and that “this
crime was violent and the charges against Leroux are serious.”
Id. at 16.
(b) Factors Favoring Transfer
to Juvenile Court
The district court found six of the factors set forth in
§ 43-276(1) favored transfer to the juvenile court, namely:
(d) Leroux’s age, (e) Leroux’s previous history, (f) Leroux’s
best interests, (h) Leroux’s ability to appreciate the nature
and seriousness of his conduct, (l) whether Leroux has been
convicted of or has acknowledged unauthorized use or posses-
sion of a firearm, and (n) whether Leroux is a criminal street
gang member.
The district court noted that Leroux was 15 years old on the
date of the charged offenses and was 16 years old at the time
of the juvenile transfer hearing. The court further stated that
“[t]he alleged victim was 25 years of age at the time of his
death” and that “two other adults were living in the residence
with two minor children.” The court indicated that the adults
were charged with child abuse because of the drug activity
in the residence, but that no other parties were charged with
the homicide.
The court acknowledged that Leroux had “a minimal prior
record” and that his only conviction was for a Class II misde-
meanor involving obstruction of a police officer. The court did
point out that Leroux was presently on probation in Colorado,
that the probationary order prohibited Leroux from traveling
outside Colorado without permission, and that a violation of
that probation was filed based upon the current offenses. Also,
Leroux’s presence in Nebraska on the date of the offenses
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Cite as 26 Neb. App. 76could be considered a violation of his probation, as well as any
possession or consumption of alcohol or marijuana. According
to the court, “No other criminal convictions or juvenile adjudi-
cations were proven by the State.”
When considering Leroux’s best interests, the court stated,
“The best interests of [Leroux] would be served accord-
ing to Dr. . . . Peraino, a Licensed Clinical Psychologist,
by treatment in a juvenile facility, rather than incarceration
with adults, where [Leroux] would be subject to negative
peer influences.” And as for Leroux’s ability to appreciate
the nature and seriousness of his conduct, the district court
acknowledged evidence presented by Dr. Peraino regard-
ing Leroux’s IQ, academic testing, and maturity level. The
court also considered Dr. Peraino’s testimony that the risk of
Leroux’s reoffending is relatively low, that treatment options
should include psychotherapy and medication, and that for
a majority of teenagers, punishment should be secondary
to treatment.
The district court determined that the State failed to prove
that Leroux has been convicted of or has acknowledged unau-
thorized use or possession of a firearm (§ 43-276(1)’s factor
(l)), and there was no evidence that Leroux was a criminal
street gang member (§ 43-276(1)’s factor (n)). Neither party
disputes the court’s findings as to these two factors.
(i) Leroux’s Argument
Leroux points out Dr. Peraino’s observation that Leroux “is
psychologically functioning at a less-than-average level for
a 16-year-old . . . with his underdevelopment falling primar-
ily in emotional areas, with a personality style of submission,
dependency and conformity.” Brief for appellant at 29. Leroux
states, “Dr. Peraino found that [Leroux] is not inherently oppo-
sitional or unruly, and that he ‘remains minimally engaged
with others allowing him to avoid taking the initiative,’ per
his valid scores on normed personality testing.” Id. Further,
Leroux states that he “did not score at elevated risk of anger
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Cite as 26 Neb. App. 76and violence compared to other juveniles his age — to the con-
trary, he scored low-risk on those metrics” and that “evidence
was not disputed.” Id. at 29-30.
Leroux argues that the State presented no evidence to chal-
lenge the testimony of Dr. Peraino, Frederick, or Stinson.
As to Leroux’s prior history, Leroux acknowledges the prior
history as set forth by the district court and points out that the
State “presented no evidence that [Leroux] had a history of
antisocial behavior; no patterns of physical violence; and his
criminal history was neither against the person or relating to
property.” Id. at 31.
As for best interests, Leroux points to Stinson’s testimony
about Colorado’s evidence-based practice resources and inter-
ventions to reduce recidivism and provide treatment to a
juvenile and Leroux argues Colorado provides “one-on-one
trauma-informed care, which is indicated for [him] as he has
been exposed to trauma multiple times in his short life.” Id.
Leroux says the State’s probation officer witness “could not
identify whether [Leroux] would receive trauma-informed care
. . . or what programs are actually available for [Leroux] at
NCYF.” Id. Leroux suggests that if he were first ordered to a
term at the YRTC in Kearney, he could then be transferred to
Colorado where his treatment needs and risk potential would
be reassessed, and an appropriate treatment plan would be
developed and administered in Colorado.
Leroux directs us to Dr. Peraino’s testimony that Leroux’s
best interests would not be served by correctional place-
ment; rather, Leroux would be vulnerable to learning things
that are antisocial in nature, which would not be good
for his long-term adult functioning. Also, Dr. Peraino has
observed that Leroux has responded well to his current juve-
nile probation program, which suggests he is responsive to
treatment.
As to § 43-276(1)’s factor (h) (ability to appreciate nature
and seriousness of conduct), Leroux refers to Dr. Peraino’s
findings regarding Leroux’s subaverage maturity and his
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Cite as 26 Neb. App. 76submissive and conforming nature. Leroux also contends that
this factor again presumes a defendant’s guilt and that the State
presented no evidence bearing on this factor.
(ii) State’s Argument
The State says there “is no serious dispute” as to
§ 43-276(1)’s factors (d) (age of juvenile and others involved),
(l) (no firearm use or conviction), and (n) (not a gang mem-
ber). Brief for appellee at 14. As for the remaining factors
favoring transfer to the juvenile court, the State acknowledges
the district court’s findings as to those factors.
(c) Neutral Factors
The district court found four of the factors set forth in
§ 43-276(1) to be either inapplicable or incapable of being
determined at this stage of the proceedings, namely: (c)
motivation for the commission of the offense, (j) whether the
victim agrees to participate in mediation, (k) whether there is
a juvenile pretrial diversion program pursuant to Neb. Rev.
Stat. §§ 43-260.02 to 43-260.07 (Reissue 2016), and (m)
whether a juvenile court order has been issued for the juve-
nile pursuant to Neb. Rev. Stat. § 43-2,106.03 (Reissue 2016).
Factor (m) is relevant when after a disposition under Neb.
Rev. Stat. § 43-247(1), (2), (3)(b), or (4) (Reissue 2016), the
court enters an order, after an evidentiary hearing, finding the
juvenile is not amenable to rehabilitative services provided
under the Nebraska Juvenile Code; such an order may be
considered in a future juvenile transfer motion. Neither party
disputes the court’s conclusion that factors (j), (k), and (m)
are inapplicable to the present case.
As to § 43-276(1)’s factor (c), the motivation for the com-
mission of the offense, the district court stated:
The motivation for the commission of the offense is
inconclusive at this point. [Leroux] and the victim [were]
allegedly consuming alcohol and using Marijuana, and
fought on several occasions during the early morning
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Cite as 26 Neb. App. 76hours of March 28, 2017. No other motive was proven
during the hearing held on October 18, 2017.
(i) Leroux’s Argument
With regard to the motivation factor, Leroux contends, “This
is a factor that presumes that [Leroux] is guilty.” Brief for
appellant at 28. Leroux claims that Nebraska appellate courts
have not “answered whether guilt may be presumed for the
purposes of disposition of a motion to transfer jurisdiction to
juvenile court.” Id. Further, the State presented no evidence
of any theories related to motivation. Although Garcia and
Derrera said Leroux and Fratis were fighting, “there was no
explanation of what the reason for the fight was” and there
are “documented histories of violence with Fratis” involving
Derrera, and possibly Garcia. Id.(ii) State’s Argument
The State acknowledges that the district court concluded the
motivation for the commission of the offenses is inconclusive.
(d) Other Matters Relevant
to Aid Decision
Factor (o) is the final consideration set forth in § 43-276(1),
and it provides for “such other matters as the parties deem
relevant to aid in the decision.” For this factor, the district
court stated it was disregarding all evidence of rehabilitative
services in Colorado because, whether Leroux was committed
by the juvenile court to the YRTC or sentenced to confinement
at the NCYF, there was no evidence that the State would seek
or agree to transfer Leroux to Colorado.
Under this factor, Leroux asks this court to consider the evi-
dence presented thus far:
[T]wo adults, cousins to each other who have two chil-
dren together, have accused of murder their much younger
third cousin who was in Nebraska only because they
brought him here. . . . The female adult left the crime
scene without summoning help for her “brother”/cousin
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Cite as 26 Neb. App. 76who was exsanguinating on the floor, although she did
take the time to throw the knife in the sink, perhaps rinse
the knife and collect her marijuana and drug parapher-
nalia as well as taking the presumably greater time to
gather her two small children before leaving the house.
. . . The male adult, who has a documented history of
violence involving the deceased . . . , also did not call
911, nor did he take his “brother”/cousin to the hospital
himself. . . . Both adult cousins lied repeatedly to law
enforcement in the course of multiple interviews. . . . A
convenience store video image of [Leroux] just minutes
after the murder shows him in a white T-shirt with no
blood anywhere on him.
Brief for appellant at 36-37.
4. Was Denial of Transfer
A buse of Discretion?
The district court found four of the § 43-276(1) factors
favored retaining jurisdiction in the district court, namely: (a)
the type of treatment Leroux would most likely be amenable
to, (b) evidence of violence, (g) consideration of public safety,
and (i) whether Leroux’s best interests and the security of the
public may require that Leroux continue in secure detention or
under supervision for a period extending beyond his minority
and, if so, the available alternatives best suited to this pur-
pose. There were six factors favoring transfer to the juvenile
court, namely: (d) Leroux’s age, (e) Leroux’s lack of previ-
ous history, (f) Leroux’s best interests, (h) Leroux’s ability to
appreciate the nature and seriousness of his conduct, (l) no past
conviction of or unauthorized use or possession of a firearm;
and (n) Leroux is not a gang member. There were three fac-
tors that were not applicable (mediation, pretrial diversion, and
prior juvenile disposition order finding juvenile not amenable
to rehabilitation services). The factor regarding motivation for
the commission of the offense could not be determined at this
stage of the proceedings.
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Cite as 26 Neb. App. 76With regard to the four § 43-276(1) factors upon which the
district court based its decision to retain the case, no one dis-
putes the violent nature of the offenses charged. However, we
view the evidence from a slightly different perspective than
the district court as to two other factors: (a) amenability to
treatment and (g) public safety. With regard to Leroux’s ame-
nability to treatment, as mentioned earlier, Leroux points to
evidence focusing on his individual amenability to treatment
as opposed to the district court’s focusing on the facilities and
services available to treat Leroux. While it was reasonable
for the district court to consider the treatment options avail-
able at the NCYF as compared to the YRTC, we think it is
also important to take into consideration Leroux’s individual
amenability to treatment. In that regard, the evidence from Dr.
Peraino established that Leroux has strong bonds with his fam-
ily, has strong social support, and is currently committed to
school and work. Importantly, Dr. Peraino stated that Leroux
“has a positive attitude towards intervention,” which “means
he accepts help. He’s willing to accept help. He’s willing to
accept guidance. He will follow the advice of others.” He
agreed these are influential areas that help to reduce the risk
of recidivism. Dr. Peraino also stated that if Leroux received
appropriate treatment, his prognosis in terms of psychological
development “would be great.” The evidence certainly sup-
ports that Leroux is amenable to treatment. That said, we can-
not say the district court abused its discretion in determining
that Leroux’s best option for such treatment would be at the
NCYF rather than the YRTC.
With regard to public safety, the district court said that “in
the opinion of the Court, [this is] the most important factor to
be evaluated in this case.” The explanation given by the court
was that if Leroux is convicted, the minimum sentence for
second degree murder would be 20 years (plus the consecutive
sentence on the deadly weapon charge), and so if convicted,
any sentence would extend well into Leroux’s adulthood. Also,
the court stated that Leroux could not be properly punished
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Cite as 26 Neb. App. 76for the violent crimes which he allegedly committed if he
was transferred to juvenile court. Based on this explanation,
it appears the district court approached the public safety fac-
tor from a sentencing and punitive perspective, rather than
considering whether Leroux posed a threat to public safety.
We see the public safety factor as encompassing whether the
record supports that Leroux is likely to be a danger to the pub-
lic if his proceedings were transferred to the juvenile court for
his custody and treatment. Considering the record from that
perspective, there was no apparent public safety issue at the
time the court entered its order denying transfer on October
27, 2017. By that time, Leroux had not been in custody since
May 1. A bond of $1 million, “Ten Percent Allowed,” was set
on April 11, and on May 1, the 10 percent was posted and
Leroux signed a waiver of extradition consenting to return to
Nebraska to answer to the charges pending against him. In its
October 27 order denying transfer, the district court observed,
“There is no suggestion that [Leroux] has committed any
criminal offenses while out on bond, and he has appeared for
all scheduled hearings.” The court then proceeded to reduce
Leroux’s bond to “$50,000 cash.”
Leroux points out that since his May 1, 2017, release on
bond, he has attended online classes, has “resumed participa-
tion at the Boys & Girls Clubs, whose staff and other partici-
pants know of [Leroux’s] charges but are providing a support-
ive environment for him.” Brief for appellant at 33. There was
no evidence of any trouble with Leroux from the time of his
release on bond to the time of the juvenile transfer hearing.
Further, Dr. Peraino testified that Leroux scored “fairly low
on being forceful, being dominating, being aggressive,” and
“relatively low on risk for reoffense,” and Frederick described
Leroux as a “[v]ery normal, very average, just a normal
15-year-old.” The Boys & Girls Club was aware of Leroux’s
charges, and Frederick was not aware of any problems with
the staff or other children as a result. Leroux has continued to
go to the club where he does his homework and “hangs out in
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Cite as 26 Neb. App. 76the peace and quiet of the teen room where there is always lots
to do.” Clearly, Leroux was not a present threat to the public
based on this record, and we construe the court’s reasoning on
public safety as related more to having sufficient time to reha-
bilitate Leroux so that upon his ultimate release, there would
be no danger to the public. Notably, public safety is closely
tied to the final factor which the court found supported retain-
ing the case, as discussed next.
Section 43-276(1)(i) requires the court to consider “whether
the best interests of the juvenile and the security of the public
may require that the juvenile continue in secure detention or
under supervision for a period extending beyond his or her
minority and, if so, the available alternatives best suited to
this purpose.” The district court stated, “[T]he security of the
public clearly requires that [Leroux] continue in secure deten-
tion for a period greatly extending beyond his minority if he
is convicted of one or both of the crimes.” The court observed
that the YRTC is the most restrictive facility available to the
juvenile court and that the YRTC is not a secure facility. On
the other hand, the court noted that the NCYF, a secure facility,
could hold Leroux until age 21 years 10 months. And the court
concluded that “a secured facility is clearly the best available
alternative in the event of [Leroux’s] conviction.”
Summarized, when weighing public safety, it is evident
that the district court was not convinced that Leroux could be
rehabilitated within the limited time the juvenile court would
retain jurisdiction. Therefore, the district court determined that
the best alternative available to provide Leroux’s treatment
would be in a secured facility for the necessary amount of time
to ensure the public’s safety, and such a facility would only
be available if the case was retained in the district court. And
as noted earlier, in 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.
State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018). Rather,
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Cite as 26 Neb. App. 76it is a balancing test by which public protection and societal
security are weighed against the practical and nonproblematical
rehabilitation of the juvenile. Id. In this case, the district court
concluded, “after balancing all of the factors and findings,”
that the safety of the public required confining Leroux beyond
the age of 19 if he is convicted and that, therefore, a “sound
basis thus exists for retaining [the] case.”
Leroux argues that the State did not meet its burden and
that 2017 legislative changes “reflect a growing sense by
our state senators, reflective of an evolved national under-
standing, that absent competent evidence that a juvenile is a
sociopathic monster, our calling is to identify problems and
treat those problems.” Brief for appellant at 41. “Our calling
is to recognize that a 15-year-old boy with a minimal criminal
history and exposure to trauma has many years ahead of him,
and is at a critical fork in his road.” Id. Leroux acknowledges
that “[n]ot every juvenile charged with murder may belong
in juvenile court — but this is a case in which a decision to
transfer jurisdiction is supportable and is, simply, the right
thing to do.” Id. at 42. Further, Leroux correctly points out
that § 43-276 does not prevent transfer of homicide charges to
juvenile court.
Leroux asks this court to consider four cases in which the
Nebraska Supreme Court affirmed each district court’s denial
of a request to transfer the case to juvenile court. Leroux
argues he “is not comparable” to the defendants in those
cases. Brief for appellant at 40. We briefly summarize the
cases noted by Leroux: State v. McCracken, 260 Neb. 234,
240, 615 N.W.2d 902, 911 (2000) (13-year-old defendant
convicted of first degree murder after he retrieved and loaded
handgun from his mother’s bedroom, then shot her twice in
head while she slept on sofa; evidence showed defendant had
“‘persistent preoccupation with morbid content, with death
and violence,’” and he was described as “‘time bomb waiting
to explode’”), abrogated on other grounds, State v. Thomas,
262 Neb. 985, 637 N.W.2d 632 (2002); State v. Mantich, 249
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Cite as 26 Neb. App. 76Neb. 311, 317, 543 N.W.2d 181, 187 (1996) (juvenile defend­
ant convicted of first degree murder and use of firearm to
commit felony; victim was kidnapped, robbed, and terrorized
at gunpoint before being shot in head; defendant admitted
pulling trigger and being “a big shot”; and defendant was 16
years old at time of crimes as stated in State v. Mantich, 287
Neb. 320, 842 N.W.2d 716 (2014)); State v. Reynolds, 247
Neb. 608, 529 N.W.2d 64 (1995) (16-year-old defendant was
on parole from YRTC when he attempted to steal car, and
when trying to escape, threatened owner with screwdriver;
defendant previously served in juvenile detention facility,
and his history indicated he did not respond to rehabilitation
efforts); and State v. Garza, 241 Neb. 934, 492 N.W.2d 32(1992) (16-year-old defendant sexually assaulted and mur-
dered 17-year-old girl, who he knew from school, in home
where she was babysitting, and brutality of crimes evidenced
by numerous injuries to victim, including hemorrhages around
her neck caused by electrical cord wrapped around it; injuries
caused by vaginal and anal penetration; bruises on her back,
shoulder, and hip; traumatic laceration on her head; deep blunt
injury between her eyebrows and upper portion of her nose;
blackened eye; and large, gaping laceration on her right wrist
down to bone).
Leroux claims that in each of these cases, there were four
factors in common: each defendant was known to be a violent
and aggressive offender, each defendant had needs beyond that
of the juvenile justice system, each defendant was a repeat
offender, and each defendant had exhausted the services of
the juvenile justice system. Leroux argues that these same
factors are not supported by the evidence in this record and
that Leroux “is not comparable” to those defendants. Brief for
appellant at 40.
Leroux is correct that there are distinguishing factors in the
cited cases when compared to the circumstances present here.
Although the factual record relevant to the crimes in this case
has not yet been fully developed due to our appellate review
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Cite as 26 Neb. App. 76now being conducted at this interlocutory stage rather than
at the conclusion of the proceedings, the record nevertheless
does present considerable evidence regarding Leroux. We
know that Leroux does not have a history of being a vio-
lent and aggressive offender, nor can he be characterized as
a repeat offender. Other than his misdemeanor offense and
the circumstances underlying this case, Leroux has no crimi-
nal history or other history of violent behavior. Leroux has
been responsive to services made available to him through
the Boys & Girls Club, and he has participated and behaved
appropriately there. He also appears to have complied with his
juvenile probation terms, other than for issues related to the
present charges.
These characteristics do set Leroux apart from the defend­
ants in the cases noted above, and they certainly support trans-
ferring Leroux’s case to the juvenile court. If Leroux’s history,
best interests, ability to appreciate the nature and seriousness
of his conduct, and his amenability to treatment were the only
factors prescribed by statute, it would have been an abuse of
discretion to not transfer the case. However, even though these
factors may distinguish Leroux from the cases he directs us to,
there are other factors to be considered.
Some of the other factors the district court had to consider
in this case are also present in the cases cited by Leroux. Most
notably, there are similarities with regard to the severity of
the offense charged, the perceived threat to the public’s safety,
and the concern that rehabilitation could not be completed
before the defendant would reach the age of majority and the
juvenile court would no longer have jurisdiction. We note
that while the factors favoring transfer in this case center on
the individual characteristics of Leroux and his ability to be
rehabilitated, the factors favoring retention focus more on the
severity of the offense and the rehabilitative and/or punitive
options available to keep the public secure while the juvenile
is being rehabilitated. In some of the cases summarized above,
neither the personal characteristics of the defendant nor the
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Cite as 26 Neb. App. 76available options for the protection of the public supported
transferring the case to juvenile court.
For example, in State v. McCracken, 260 Neb. 234, 615
N.W.2d 902 (2000) (13-year-old defendant shot mother in head
while she was sleeping), abrogated on other grounds, State v.
Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002), the key factors
noted for retaining jurisdiction in the district court included the
violent and aggressive nature of the act perpetrated against a
person and the obvious threat to the public from the defendant.
The Nebraska Supreme Court stated:
In spite of [the defendant’s] youthful age at the time of
the crime, the extreme violence perpetrated upon the
victim and the protection of the public in light of [the
defendant’s] poor psychiatric prognosis lead us to con-
clude that the district court did not abuse its discretion
when it denied [the defendant’s] motion to transfer to the
juvenile court.
State v. McCracken, 260 Neb. at 249, 615 N.W.2d at 916-17.
While the defendant in McCracken had a poor psychiatric
prognosis, Leroux’s psychiatric prognosis is certainly more
positive. Dr. Peraino testified that if Leroux received appropri-
ate treatment, his prognosis in terms of psychological devel-
opment “would be great.” McCracken would suggest that a
poor psychiatric prognosis combined with an extremely violent
crime and concerns about the safety of the public can tip the
balance toward keeping the case in adult court and that doing
so does not constitute an abuse of discretion.
In the other cases summarized above, the focus appears to
have been more on the severity of the offense and the lack
of juvenile facility options which would be capable of safely
housing and rehabilitating a juvenile who has committed such
an offense. In other words, the courts express concern about
the lack of an appropriate facility where the juvenile can be
securely detained while receiving necessary services and treat-
ment, and further, the courts express concern for the public’s
safety in the event that treatment is not completed by the
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Cite as 26 Neb. App. 76time the juvenile system would lose jurisdiction. For example,
in State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996)
(juvenile defendant; victim kidnapped, robbed, and terrorized
at gunpoint, then shot in head), the district court found that
the offense included violence and was performed in a highly
aggressive manner; further, the defendant had previously been
involved with the police for property offenses, and there were
no juvenile facilities appropriate for treatment and rehabilita-
tion of a juvenile who had committed murder. The security
of the public required that the defendant be incarcerated for a
period extending beyond his minority, “which would render the
juvenile system inadequate to address these needs.” Id. at 319,
543 N.W.2d at 189.
These were the same concerns the district court had in the
present case. The other two cases cited by Leroux similarly
focus on the limitations of the juvenile justice system to
address the needs of those particular defendants when weighed
against the safety of the public.
In addition to the cases pointed out by Leroux, this court
has reviewed several other cases in which a request to transfer
to juvenile court was denied by the trial court and affirmed
on appeal. In State v. Stevens, 290 Neb. 460, 860 N.W.2d 717(2015), a 15-year-old defendant and accomplices struck the
victim in the face with a gun and took her vehicle and cell
phone. The defendant was previously adjudicated at age 13
and failed to take advantage of many opportunities for treat-
ment options. The crime was committed in an aggressive and
premeditated manner, and the defendant had gang involvement
and a history of violence. It was determined that custody or
supervision would be needed beyond his minority.
In State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732(2015), the 15-year-old defendant was involved in the same
crime as the defendant in State v. Stevens, supra. This defend­
ant had been in secure detention at least four times, had run
away three times, had escaped from the YRTC, and was
previously adjudicated for two assaults and various criminal
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Cite as 26 Neb. App. 76mischief violations. He identified with a gang, and the offense
was committed in an aggressive and premeditated manner.
Further, the defendant demonstrated an unwillingness to par-
ticipate in programming in juvenile court over a 3-year span.
In State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009),
a 14-year-old defendant fired shots which killed a 6-year-old
child sitting in a car. The shooting stemmed from the defend­
ant’s earlier confrontation with a woman who the defendant
then shot at later, but at least two shots fired by the defendant
entered the rear window of the car, striking and killing the
child. The defendant was previously in juvenile court by age
11 for third degree arson, and again for disorderly conduct.
The defendant had a history of behavior problems at home
and in school, used marijuana daily and alcohol periodically,
and after weapons-related charges, the defendant was placed
in a group home for therapy and chemical dependency coun-
seling but failed to return twice after weekend passes and
then ran away. The defendant’s caseworker testified that the
defendant was unfriendly, very rude, and disrespectful and
that the defendant blamed the caseworker for the fatal shoot-
ing. It was concluded the defendant could not be rehabilitated
before reaching age 19. The defendant claimed the State failed
to present evidence he was not amenable to further treatment
through the juvenile court. However, the violent nature of the
crime, the defendant’s previous history of violent and aggres-
sive behavior, and the defendant’s failure to respond positively
to corrective treatment, all supported retaining jurisdiction in
the district court.
In State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007), a
nearly 17-year-old defendant, along with others, attacked and
fatally stabbed the victim 69 times. Although the defendant
was not as culpable as his accomplices, he was involved in
the planning and commission of the crime. There was concern
whether, given the severity of the crime, there were appropriate
juvenile services available, plus there was limited time before
the juvenile court would cease to have jurisdiction.
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Cite as 26 Neb. App. 76In State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993),
a 15-year-old defendant fatally shot a man and was convicted
of first degree murder and use of a firearm to commit a felony.
The severity of the crime and the public’s security weighed
against transfer. Also of concern was the fact that the juvenile
court could only retain jurisdiction until age 19 and would be
ill-suited to effectively rehabilitate the defendant.
In State v. Doyle, 237 Neb. 60, 464 N.W.2d 779 (1991), a
15-year-old defendant and a coperpetrator burglarized a pawn
shop, taking guns and ammunition. They subsequently stole
a van and went to a shopping mall where the coperpetrator
pointed a loaded gun at the victim in an attempt to rob her of
her vehicle. The district court failed to set forth specific find-
ings when it denied the transfer, so the cause was remanded for
the court to make its findings. When the case returned in State
v. Doyle, 237 Neb. 944, 468 N.W.2d 594 (1991), the denial of
the transfer was affirmed. The primary concerns in that case
included the following: the ability to rehabilitate the defendant
by age 19, the defendant’s failure to observe terms of a prior
juvenile probation order, the defendant was on probation for
burglary when he engaged in further unlawful conduct, the
motivation for the charged offense was to use violence and
unlawful conduct for enrichment of the defendant, and the
facilities for treatment and rehabilitation were better available
if the case was kept in the district court.
In another case that also had to be remanded for specific
findings, a denial of a juvenile transfer request was affirmed
when it returned after remand in State v. Phinney, 236 Neb. 76,
459 N.W.2d 200 (1990). In that case, a 15-year-old defendant
committed a “premeditated act of violence which resulted in
the death of his mother.” Id. at 82, 459 N.W.2d at 204. There
was evidence that the defendant’s social skills were “fairly
primitive,” the defendant had “character problems” that would
require therapy, and it was possible “retraining” could not be
accomplished before the defendant turned 19. Id. at 79, 459
N.W.2d at 202. The defendant had no prior criminal history, but
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Cite as 26 Neb. App. 76there was no evidence that the defendant could be “retrained”
and “cured” by the time he was 19. Id. at 80, 459 N.W.2d at
203. The Nebraska Supreme Court pointed out that although
there was testimony that the defendant could be successfully
treated at a youth center in Kearney and could be released back
into society without posing a danger to society, it also noted
the evidence that it was possible the defendant might still have
problems after turning 19. The Supreme Court stated, “The dis-
trict court apparently was not convinced that defendant could
be rehabilitated within the time the juvenile court would retain
jurisdiction over him and was concerned about defendant’s
premeditated act of violence which resulted in the death of his
mother.” Id. at 82, 459 N.W.2d at 204.
The Nebraska Supreme Court recently released a decision
involving the denial of a juvenile transfer request. In State v.
Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018), a 15-year-old
defendant was charged in district court with attempted second
degree murder, robbery, attempted robbery, and three counts
of using a deadly weapon (firearm) to commit a felony, all
arising from two armed robberies which took place in March
2016 in Omaha, Nebraska. The defendant had previously
committed armed robberies when he was 14 years old, and
he was ultimately returned to his mother’s home in December
2015. He was ordered to wear an electronic monitoring device
and to abide by certain conditions; he was also ordered
to participate in counseling and gang prevention services.
Despite these efforts, the defendant committed the March
2016 robberies.
The defendant’s evidence at the transfer hearing in Hunt
included testimony from the defendant’s juvenile probation
officer, who claimed that the defendant had been “respect-
ful, patient, open, and honest with her.” 299 Neb. at 577,
909 N.W.2d at 368. The probation officer said the defendant
was a member of a gang in Omaha and would benefit from a
structured rehabilitative environment. However, the defendant
“was rejected by both Boys Town and Omaha Home for Boys
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Cite as 26 Neb. App. 76primarily due to the serious nature of his [earlier] charges.”
Id. The defendant and his family received numerous services,
including family support, gang intervention, therapy, and elec-
tronic monitoring. The defendant was ordered to attend school
and therapy, but within a few weeks he was suspended from
school for fighting, began missing curfew, cut off his elec-
tronic monitoring device, and used marijuana. The probation
officer testified that the secure youth detention facility in
Kearney could not reject the defendant and offered therapy
and services directed to youth which the probation officer
believed would benefit the defendant. The probation officer
did note that therapy and other services were also available in
adult prisons.
[6] The Nebraska Supreme Court observed that the district
court found that the defendant’s current and prior offenses
were extremely violent and aggressive and were committed
in a premeditated manner. The defendant was charged with
crimes of violence involving guns, and “his crimes exhibited
sophistication and maturity.” Id. at 578, 909 N.W.2d at 369.
The defendant was a gang member, and although he might
be amenable to treatment, “there were no guarantees ‘or even
reasonable assurances’ that [the defendant] would be accepted
into a group home setting given this was his second episode
of seriously violent offenses within a 9-month period.” Id.
The district court had concluded that without detention and
rehabilitative treatment, the defendant presented a serious
risk to the community, and further, that it was in the defend­
ant’s best interests to be continued in secure detention. After
weighing the statutory factors, the district court concluded
there was a sound basis for retaining jurisdiction over the
case. The Supreme Court affirmed, noting that “[w]hen a dis-
trict court’s basis for retaining jurisdiction over a juvenile is
supported by appropriate evidence, it cannot be said that the
court abused its discretion in refusing to transfer the case to
juvenile court.” State v. Hunt, 299 Neb. 573, 583, 909 N.W.2d
263, 372 (2018).
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Cite as 26 Neb. App. 76The theme evident in the cases discussed above is this:
When a juvenile commits a violent crime, the trial court is
not likely to grant a request to transfer to the juvenile court
because (1) the juvenile court will lose jurisdiction when the
defendant turns 19 years of age which may not allow suffi-
cient time for the complete rehabilitation of the juvenile, and
therefore retention is necessary to ensure public safety, and
(2) there is no secure youth detention facility available which
can safely provide the appropriate services and treatment for
a juvenile who has committed a more serious offense. 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. The trial court’s decision carries the consequence
that if the decision is wrongly made, we have either missed
an opportunity to rehabilitate a juvenile outside the nega-
tive influences of adult incarceration or failed to adequately
incarcerate a potentially dangerous juvenile who will go on to
commit further violent crimes. As exemplified in Dr. Peraino’s
testimony, if Leroux received appropriate treatment, his prog-
nosis in terms of psychological development “would be great.”
Whereas, if he was put into a correctional setting, “given our
discussion previously about his vulnerability, submissiveness,
dependency, . . . he would be vulnerable to learning things that
are antisocial in nature. And that would not be good for his
long-term adult functioning.”
While in some of the cases discussed above, the aggressive,
violent, or premeditated nature of the offense combined with
the mental health or historic behaviors of the juvenile were
such that it was clear that the services, facility options, and age
limit of the juvenile system could not safely house and reha-
bilitate the juvenile before the juvenile court would lose juris-
diction. In the instant case, it is less clear. Although the district
court found many of the statutory factors favored transferring
Leroux to the juvenile court, the court weighed more heav-
ily its concerns for public safety, namely, that the time left to
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Cite as 26 Neb. App. 76treat Leroux under the juvenile court’s jurisdiction would not
be sufficient and the security and services at the YRTC would
not be adequate for someone convicted of more serious crimes,
such as the ones at issue here.
The State agrees with the district court’s focus on the seri-
ous nature of the crimes and the limited timeframe in which
to treat Leroux if under the juvenile court’s jurisdiction. The
State acknowledges that although Leroux “made a significant
factual record at the transfer hearing,” the “weighing [of]
those facts is the province of the trial court.” Brief for appellee
at 16. The State points out that Leroux is alleged to have vio-
lently and fatally stabbed the victim six times, and at age 16,
Leroux “will only remain in the jurisdiction of the Nebraska
juvenile court system for 2.5 years.” Id. at 17. Because the
YRTC is not secure and can house offenders for only a lim-
ited period of time and because the NCYF has more extensive
programming available for offenders, the State contends the
district court did not abuse its discretion in retaining jurisdic-
tion over the case.
There is no question that Leroux presented the district
court, and thus, this court, with a very well-considered and
thorough record to review an extremely difficult issue. That
Leroux “is at a critical fork in his road” no doubt weighed
heavily on the trial court, as it does this court. See brief for
appellant at 41. In our review of the record, we can certainly
agree with Leroux that there was evidence supporting his
request to transfer the case to juvenile court, and perhaps
even enough to tip the scale more toward granting his trans-
fer request. On the other hand, we can also agree with the
State that the record supports the district court’s decision to
retain jurisdiction. And unless the evidence fails to support
the district court’s decision, then, as we noted at the onset of
this opinion, we are constrained by our standard of review.
Therefore, since the district court’s basis for retaining juris-
diction over Leroux is supported by appropriate evidence, it
cannot be said that the court abused its discretion in refusing
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. LEROUX
Cite as 26 Neb. App. 76to transfer the case to juvenile court. See State v. Hunt, 299
Neb. 573, 909 N.W.2d 363 (2018).
VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s
order denying Leroux’s request to transfer the case to the juve-
nile court.
A ffirmed.