State v. Hill ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HILL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DASHAWN HILL, APPELLANT.
Filed May 15, 2018. No. A-17-1268.
Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Korey T. Taylor for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.
MOORE, Chief Judge.
INTRODUCTION
Dashawn Hill was charged in the district court for Douglas County with use of a deadly
weapon (firearm) to commit a felony, a Class IC felony, and robbery, a Class II felony. Hill appeals
from the order which overruled his motion to transfer the case from district court to juvenile court.
We affirm.
BACKGROUND
A hearing was held on Hill’s motion to transfer on November 30, 2017. The State offered
three exhibits into evidence: the juvenile court file from Hill’s previous juvenile adjudication,
Hill’s Douglas County record, and the Omaha Police Department incident report relevant to the
pending charges. Hill presented testimony of Melissa Driscoll, the juvenile court coordinator with
the Douglas County Public Defender’s office.
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In 2015, Hill was charged in juvenile court with four offenses: second degree trespass, a
misdemeanor; damage to property, a violation of the Omaha Municipal Code; obstructing an
officer, a violation of the Omaha Municipal Code; and possession of marijuana, an infraction. Hill
ultimately admitted to the count of damage to property and the remaining charges were dismissed.
He was placed on probation, in the home of his grandmother, under a tracker/electronic monitoring
program. Hill’s case plan involved participation in gang intervention, therapy, enrollment in
school, participation in the “Triage Program,” which is an after-school program, and in-home
preservation services. Hill was successfully discharged from probation in June 2016. Hill has no
other criminal history record in Douglas County.
The incident which resulted in the current charges occurred on September 7, 2017, when
Hill was 16 years old. The police report reflects that a 13-year-old boy was walking down the street
when a vehicle pulled in front of him, a male jumped out, approached the victim, pulled out a small
black handgun, and demanded the victim’s shoes. The male stated he would shoot the victim if he
did not comply. The victim gave the male his shoes, after which he returned to the vehicle and it
left the area. An eyewitness checked to see if the victim was okay, and heard the male say that if
they followed him, he would shoot them both.
A few days later, the victim was contacted via social media by a particular user name who
indicated he had the victim’s shoes and offered to sell them back to him for $150. The message
contained pictures of the user holding the victim’s shoes. The victim advised law enforcement
officers that he believed the user was possibly named Dashawn and a member of a particular gang.
An officer looked through several police databases and positively identified the user as Hill. The
officer also identified that Hill is a documented gang member. Police executed a search warrant at
Hill’s home that he shared with his mother, and the victim’s shoes were recovered. Police also
recovered a Ruger handgun from the master bedroom, a “[w]hite Ruger LCP firearm box,” and an
ammunition box with 12 live rounds. The Ruger firearm belonged to Hill’s mother.
Hill was then taken into custody and interviewed by police. Hill told police that he knew
the victim as an acquaintance. Hill indicated that he was supposed to purchase shoes from the
victim on the night in question but instead he just took the shoes. Hill stated that he was holding a
BB gun at the time of the incident but that he no longer had this gun. He denied using the firearm
that was recovered during the search of his home. Hill stated that he had handled that gun before
but had not used it.
Driscoll testified about the types of services that are available to the juvenile courts. A
juvenile could be placed on probation for an open-ended period of time, and the juvenile could be
required to participate in an array of services, including various therapies and gang intervention.
Additionally, if more stringent services are needed, the juvenile court could order out of home
placement depending on the youth’s needs, which could include placement in foster care, a group
home, a therapeutic group home, a residential treatment facility, or at the Youth Rehabilitation and
Treatment Center (YRTC) in Kearney, Nebraska. Driscoll further testified to the types of services
available at various group homes. Driscoll testified that Hill has never had group home placements
or commitment at the YRTC and thus had not participated in any of the programs available there.
Driscoll indicated that out-of-state group homes are available as well. She identified particular
placements that accept juveniles with gun charges, including Boys Town, Omaha Home for Boys,
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the YRTC, and two out-of-state placements. Services, along with transition planning, can be
provided to youths at the juvenile level until they reach the age of 19, if needed.
On November 29, 2017, the district court entered an order denying the motion to transfer.
The court noted that although Hill’s probation was terminated successfully, and assuming he is
guilty of the charges in this case, the services provided to him by the juvenile court did not change
his criminal actions. The court found that the alleged crime is “extremely serious” in that a
13-year-old boy was robbed and threatened with a gun. The court concluded, after considering the
criteria set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016), that it “has great concern for public
safety and the ability of the Juvenile Court to provide any benefit to [Hill] in the short time that it
would have control over him, which would be, realistically, less than two years. [Hill] will need a
much longer period of rehabilitation for it to have any chance of success.”
Hill timely appeals.
ASSIGNMENT OF ERROR
Hill assigns that the district court abused its discretion in denying his motion to transfer to
juvenile court and determining that the State had met its burden in proving a sound basis for
retention of the case in district court.
STANDARD OF REVIEW
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 363 (2018).
An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
ANALYSIS
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants concurrent jurisdiction to the juvenile
court and the county or district courts over juvenile offenders who (1) are 11 years of age or older
and commit a traffic offense that is not a felony or (2) are 14 years of age or older and commit a
Class I, IA, IB, IC, ID, II, or IIA felony. Actions against these juveniles may be initiated either in
juvenile court or in the county or district court. In the present case, the allegations against Hill put
him within this category of juvenile offenders.
When an alleged offense is one over which both the juvenile court and the criminal court
can exercise jurisdiction, a party can move to transfer the matter. For matters initiated in criminal
court, a party can move to transfer it to juvenile court pursuant to Neb. Rev. Stat. § 29-1816(3)
(Supp. 2017).
In the instant case, when Hill moved to transfer his case to juvenile court, the district court
conducted a hearing pursuant to § 29-1816(3)(a), which subsection requires consideration of the
following factors set forth in Neb. Rev. Stat. § 43-276(1) (Reissue 2016):
(a) The type of treatment such juvenile would most likely be amenable to; (b) whether there
is evidence that the alleged offense included violence; (c) the motivation for the
commission of the offense; (d) the age of the juvenile and the ages and circumstances of
any others involved in the offense; (e) the previous history of the juvenile, including
whether he or she had been convicted of any previous offenses or adjudicated in juvenile
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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 firearm; (m) whether a juvenile court order has been
issued for the juvenile pursuant to section 43-2,106.03; (n) whether the juvenile is a
criminal street gang member; and (o) such other matters as the parties deem relevant to aid
in the decision.
The customary rules of evidence shall not be followed at such hearing and, “[a]fter
considering all the evidence and reasons presented by both parties, the case shall be transferred to
juvenile court unless a sound basis exists for retaining the case in county court or district court.”
See § 29-1816(3)(a) and (b).
As the Nebraska Supreme Court has explained, in conducting a hearing on a motion to
transfer a pending criminal case to juvenile court, the court should employ “a balancing test by
which public protection and societal security are weighed against the practical and
nonproblematical rehabilitation of the juvenile.” State v. Stevens, 290 Neb. 460, 465, 860 N.W.2d
717, 725 (2015). “In order to retain the proceedings, the court need not resolve every factor against
the juvenile, and there are no weighted factors and no prescribed method by which more or less
weight is assigned to a specific factor.” Id. “The burden of proving a sound basis for retention lies
with the State.” Id. When a 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, 909 N.W.2d 363 (2018).
Hill was 16 years old at the time of the incident and turned 17 years old in December 2017.
He was previously placed on probation in juvenile court for a municipal code violation and was
allowed to reside with his grandmother under an alternative electronic monitoring program. As a
part of that probation, he was ordered to participate in gang intervention, therapy, an after-school
program, in-home preservation services, and be enrolled in school. Hill was successfully released
from probation in June 2016, and his juvenile record was sealed. Approximately 15 months later,
Hill allegedly engaged in the criminal activity for which he is currently charged, thereby
suggesting that the previous services provided to Hill in the juvenile court were unsuccessful to
deter future criminal conduct. And, as noted by the district court, the current charges are serious
and involve the use of a weapon to rob a young boy of his shoes.
In addition to the seriousness of the charges, the district court was concerned that the
remaining period of time before Hill reaches majority is insufficient to successfully provide him
with rehabilitative services. The juvenile court did not specifically comment on Driscoll’s
testimony. However, while Driscoll outlined several options that could be available to Hill should
the matter be transferred to juvenile court, she did not offer testimony to show that Hill would be
accepted into such treatment programs, he would be amenable to such services, or that the services
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would likely be beneficial or successful in the approximate 2 years remaining before Hill reaches
majority. See State v. Ice, 244 Neb. 875, 509 N.W.2d 407 (1994) (trial court determined that
appellant required treatment and supervision for extended period, beyond age of majority; court
properly considered statutory criteria and relevant evidence); State v. Thieszen, 232 Neb. 952, 442
N.W.2d 887 (1989) (no abuse of discretion in retaining jurisdiction over 15-year-old defendant
where there was some evidence that he could have been successfully rehabilitated within
remaining time as minor, crime was particularly violent and defendant might require treatment
beyond age of majority); State v. Blimling, 25 Neb. Ct. App. 693, ___ N.W.2d ___ (2018) (record
supported finding that defendant would require treatment beyond 19th birthday).
Upon our review of the record, we cannot say that the district court abused its discretion in
denying Hill’s motion to transfer to juvenile court and in finding a sound basis to retain jurisdiction
in district court. While there were factors that weighed in favor of transferring the matter to
juvenile court, there were other factors that weighed in favor of retaining jurisdiction in the district
court. The district court balanced the factors it deemed most significant, and there was appropriate
evidence to support its decision.
As recently noted by the Nebraska Supreme Court, “the possibility of disposition under the
juvenile code remains available to juveniles even if their case is transferred from juvenile to
criminal court.” In re Interest of Tyrone K., 295 Neb. 193, 211, 887 N.W.2d 489, 501 (2016). See,
also, In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018). Specifically, Neb. Rev.
Stat. § 29-2204.02 (Reissue 2016) provides:
(6) If the defendant was under eighteen years of age at the time he or she committed
the crime for which he or she was convicted, the court may, in its discretion, instead of
imposing the penalty provided for the crime, make such disposition of the defendant as the
court deems proper under the Nebraska Juvenile Code.
CONCLUSION
Finding no error in the district court’s denial of the motion to transfer to juvenile court, we
affirm.
AFFIRMED.
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