In re Interest of Anfernee W. ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF ANFERNEE W.
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).
IN RE INTEREST OF ANFERNEE W., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
ANFERNEE W., APPELLANT.
Filed August 1, 2023. No. A-23-208.
Appeal from the Separate Juvenile Court of Lancaster County: ROGER J. HEIDEMAN, Judge.
Affirmed.
Douglas L. Kerns for appellant.
Patrick F. Condon, Lancaster County Attorney, and Tara A. Parpart, for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
The separate juvenile court of Lancaster County transferred a juvenile’s case to the county
court upon motion by the State. The juvenile filed an appeal, claiming that the juvenile court
abused its discretion in transferring the case. Finding no abuse of discretion, we affirm.
II. BACKGROUND
Anfernee W., born August 2005, was arrested on February 17, 2023, and a petition was
filed against him in the juvenile court. He was charged with possessing a firearm during the
commission of a felony, a Class II felony; unlawful possession of a firearm by a prohibited juvenile
offender, a Class IV felony; and possession of a controlled substance (methamphetamine), a Class
IV felony. The charges arose from a report of a number of runaway juveniles who had checked
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into a hotel room. When police arrived, they found a number of people in the room with open
containers of alcohol. Anfernee exited from the bathroom and said his mother was there to pick
him up. Officers discovered he had a juvenile detention warrant and he was taken into custody and
searched. The search revealed a stolen handgun, a magazine with twelve 9mm rounds in it, a
bulbous glass pipe, and a container with a bag of 0.4 grams of methamphetamine.
The State filed a motion to transfer contemporaneously with the filing of the petition. At
the hearing on the motion to transfer held in March 2023, the court received into evidence several
exhibits detailing Anfernee’s prior criminal history. He was first adjudicated in the juvenile court
in December 2019 for unauthorized application of graffiti. He was placed on 4 months’ probation
in January 2020. In early May, the State filed a motion to revoke probation for failing to attend
school, possession of alcohol, and not following the directions of his parents and authority figures.
While that motion was pending, Anfernee ran away and a bench warrant was issued. Supplemental
charges were filed in June 2020 for attempted theft by unlawful taking ($0-$500), second degree
criminal trespass, obstruction of a peace officer, theft by shoplifting ($0-$500), and minor in
possession. A second supplemental petition was filed in July adding two counts of burglary.
Anfernee was arrested, initially detained, and then released to his mother. Later that month, a third
supplemental petition was filed adding charges of theft by receiving stolen property ($0-$500) and
burglary. On August 17, he admitted to, and was adjudicated for, obstructing a police officer,
minor in possession, and two counts of burglary. The remaining charges were dismissed.
In September 2020, the State filed a fourth supplemental petition alleging a burglary that
had occurred in May. Anfernee was also charged in Butler County, Nebraska, for the offense of
theft by receiving stolen property ($1,500-$4,999), which occurred in April. He was adjudicated
on an attempt of that offense and the juvenile court accepted transfer of that matter in October.
Later that month, Anfernee was detained and committed to the Youth Services Center after being
caught in a stolen car in Lincoln, Nebraska. He was adjudicated on counts of criminal mischief,
third degree assault, and theft by unlawful taking the next month. Following a detention hearing,
he was released to CEDARS Crisis Stabilization Center. Anfernee ran away and a bench warrant
was issued in December. Thereafter, he was ordered to be placed in the Nebraska Youth Center
Group Home, but fled that facility in January 2021. Another bench warrant was issued and
Anfernee was located 2 months later in South Dakota.
Upon being located in South Dakota in March 2021, Anfernee was detained in the Youth
Service Center and then placed on a 15-month term of probation and placed in a psychiatric
residential treatment facility. In September he was allowed to return home to his mother. However,
after violating probation, he was detained at the Youth Services Center in February 2022 and
ordered to remain in detention. He was committed to the Youth Rehabilitation and Treatment
Center (YRTC) in April, after adjudication on the probation violation. Following his release from
the YRTC, he was placed on a 6-month probation and returned home to his parents in January
2023.
On February 7, 2023, Anfernee ran away and a bench warrant was issued. On February 17,
he was detained on the charges involved in the present appeal.
Anfernee’s probation officer, who has supervised him since he was adjudicated in January
2020, testified as to the services Anfernee has been offered, and those are numerous. Aside from
the many in-home services, he had been placed at CEDARS, the Nebraska Youth Center group
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home, Lakeland Behavioral Health in Lakeland, Missouri, and finally at the YRTC in Kearney,
Nebraska. He had many failures and some successes. His probation officer testified that for the
last three to four months at YRTC, he was doing exceptionally well. However, she testified that
there were not any other services that could be implemented that probation has not already offered.
According to the probation officer, Anfernee was diagnosed with post-traumatic stress
disorder based on his trauma as a young child. He was also diagnosed with major depressive
disorder. Substance abuse had not been an issue and he did not test positive for methamphetamine
until February 2023. None of his prior behaviors warranted substance abuse treatment.
Upon questioning from the court, the probation officer clarified the circumstances of
Anfernee’s arrest in the pending case. She testified that although the initial report was of several
runaway minors in a hotel room, the police report indicated the room had been rented by a
24-year-old adult and the report contained no information that any other juveniles were in the
room.
Anfernee’s mother testified on his behalf. She explained that although she was now sober,
Anfernee grew up in a house where both of his parents were addicts and she believed this had a
negative effect on Anfernee. She was surprised, however, that he was charged with possession of
methamphetamine because he had a very negative attitude about that and it would be
uncharacteristic of him.
In a written order, the juvenile court granted the State’s motion to transfer the case to
county court. In its order, the court addressed each of the factors set forth in Neb. Rev. Stat.
§ 43-276 (Cum. Supp. 2022) but did not specifically state whether the factor did or did not support
a transfer to county court. Anfernee appeals.
III. ASSIGNMENT OF ERROR
Anfernee assigns that the juvenile court erred in transferring his case to the county court
because the evidence was insufficient to prove by a preponderance of the evidence that the case
should be transferred.
IV. STANDARD OF REVIEW
An appellate court reviews a juvenile court’s decision to transfer a juvenile offender’s case
to county court or district court de novo on the record for an abuse of discretion. In re Interest of
Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018). When the evidence is in conflict, an appellate
court may give weight to the fact that the lower court observed the witnesses and accepted one
version of the facts over the other. Id.V. ANALYSIS
1. PRINCIPLES RELATING TO TRANSFER
Neb. Rev. Stat. § 43-246.01(2) (Reissue 2016) grants exclusive original jurisdiction to the
juvenile court as to any juvenile 14 years of age or older who commits an act which would
constitute a felony except for an alleged offense punishable as a Class I, IA, IB, IC, ID, II, or IIA
felony. As to these offenses, § 43-246.01(3) grants concurrent jurisdiction to the juvenile court and
the county or district courts. For offenses arising under § 43-246.01(2), proceedings may be
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transferred from the juvenile court to the county or district court pursuant to Neb. Rev. Stat.
§ 43-274 (Cum. Supp. 2022).
In the present case, Anfernee was charged with two Class IV felonies and a Class II felony.
Although the juvenile court has exclusive original jurisdiction over the Class IV felonies, transfer
to the county or district court is permissible under § 43-246.01(2). For matters initiated in juvenile
court, the county attorney or city attorney can move to transfer the proceeding to adult court
pursuant to § 43-274(5).
When the prosecution seeks to transfer a juvenile offender’s case to criminal court, the
juvenile court must retain the matter unless a preponderance of the evidence shows that the
proceeding should be transferred to the county court or district court. In re Interest of Steven S.,
supra. See, also, § 43-274(5). Here, the prosecution properly moved to transfer the case to county
court; therefore, we review whether the juvenile court abused its discretion in granting the motion.
2. TRANSFER WAS NOT ABUSE OF DISCRETION
When the State moved to transfer Anfernee’s case to adult court, the juvenile court
conducted a hearing pursuant to § 43-274(5) and considered the following factors set forth in
§ 43-276(1):
(a) The type of treatment such juvenile would most likely be amenable to; (b) whether there
is evidence that the alleged offense included violence; (c) the motivation for the
commission of the offense; (d) the age of the juvenile and the ages and circumstances of
any others involved in the offense; (e) the previous history of the juvenile, including
whether he or she had been convicted of any previous offenses or adjudicated in juvenile
court; (f) the best interests of the juvenile; (g) consideration of public safety; (h)
consideration of the juvenile’s ability to 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 or juvenile agree to participate in restorative justice; (k)
whether there is a juvenile pretrial diversion program established pursuant to sections
43-260.02 to 43-260.07; (l) whether the juvenile has been convicted of or has
acknowledged unauthorized use or possession of a 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.
As the Nebraska Supreme Court has explained, in conducting a hearing on a motion to
transfer a pending juvenile offender’s case to criminal 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.” In re Interest of Steven S., 299 Neb. 447, 457, 908
N.W.2d 391, 398 (2018). 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 prosecution “has the burden by a preponderance of the evidence to show
why such proceeding should be transferred.” § 43-274(5).
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Anfernee claims the juvenile court conducted an “erroneous and incomplete analysis” of
the relevant factors. Brief for appellant at 26. We set forth his arguments as to those factors.
(a) § 43-276(1)(a) - Type of Treatment Juvenile Would Most Likely Be Amenable To
The juvenile court found that Anfernee has had increased filings and adjudications for both
misdemeanor and felony offenses since coming under the court’s jurisdiction in 2019. It
recognized the multiple services juvenile probation had provided and stated that the probation
officer had opined “that all options available that would have a reasonable likelihood of success
through a juvenile court adjudication have been exhausted.”
Anfernee takes issue with the court’s interpretation of the probation officer’s opinion. He
claims that she testified that 18 months remained before Anfernee’s minority ended, that he had
expressed his willingness to return to a level of service similar to the YRTC, and that such
therapeutic services would be more beneficial to him than incarceration without such services.
While that is an accurate representation of her testimony on cross-examination, it does not negate
her testimony that “when it comes to juvenile – the services that we have, we’ve – we’ve tried
everything” or her opinion that there were no other services different than what probation has
already offered. And while therapeutic services are more beneficial than incarceration without such
services, there was no indication that therapeutic services would be unavailable if the case was
transferred to adult court.
Based upon Anfernee’s escalating behaviors despite the multitude of services and
placements offered by juvenile probation, it is clear that he has not been amenable to such services.
Simply because services are available does not mean the juvenile is amenable to them. See State
v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018) (in considering motion to transfer, it is
important to consider defendant’s individual amenability to treatment). This factor supports a
transfer to adult court.
(b) § 43-276(c) - Motivation for Commission of Offense
The juvenile court found there was no evidence to determine Anfernee’s motivation for the
offense. Anfernee claims the court erroneously failed to consider the negative impact having an
addicted father had on him. However, the Supreme Court has held in cases involving motions to
transfer a case from adult court to juvenile court that “factors that are considered ‘neutral’ or ‘not
applicable’ are equivalent to factors that favor transfer because § 43-276 starts with the
presumption that the case should be transferred [to juvenile court]; the court’s determination
thereafter is whether other factors provide a sound basis for retention.” State v. Cardenas, 314
Neb. 544, 561, 990 N.W.2d 915, 928 (2023).
In a motion to transfer a case from juvenile court to adult court, the burden is upon the
State to prove by a preponderance of the evidence that the case should be transferred. Where the
evidence is neutral, or the factor not applicable, the State has failed to meet its burden. Absent
evidence of motivation, this factor does not weigh in favor of transfer.
(c) § 43-276(d) - Age of Juvenile and Others Involved
The juvenile court noted that Anfernee was 17½ years old and that he was found in a room
rented by a 24 year old adult, in the presence of other adults, and that he was also “on the run.”
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Anfernee claims that the court gave undue weight to the evidence of the age of the other persons
when there was also evidence that many juvenile runaways had been in the room. He also claims
that “it is unclear what bearing the ages of the other occupants of the room have on the conduct of
[Anfernee].” Brief for appellant at 22.
When the evidence is in conflict, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of the facts over the other. In re
Interest of Jorge A., 31 Neb. App. 896, 990 N.W.2d 560 (2023). Furthermore, the probation officer
testified that it was “word-of-mouth that other juveniles [] may have been there,” whereas the
police reports set forth the ages of specific individuals and they were over the age of 18. We find
no error in the court’s reliance upon the police reports in making this finding of fact.
Regarding Anfernee’s argument that it is unclear what bearing the ages of the other
occupants have, § 43-276(1)(d) specifically requires consideration of this information. The police
report indicates a 24 year old had rented the room and a number of people above the age of 19
years old were present in the hotel room at the time of Anfernee’s arrest. This indicates that
Anfernee was engaging in his criminal behaviors while associating with adult counterparts and not
with other juveniles. This factor, along with Anfernee’s age, supports a transfer to adult court.
(d) § 43-276(e) - Previous History of Individual
The juvenile court recounted that Anfernee has been adjudicated on eight misdemeanor
counts and three felony counts since coming under the court’s jurisdiction in 2019. It further
observed Anfernee’s various placements and the number of times he absconded from them.
Anfernee argues that the court failed to address why his history in juvenile court weighs in favor
of transfer to adult court.
Anfernee’s prior history in juvenile court proves this incident is not merely a misstep for
an otherwise law abiding youth. It shows that he has engaged in a number of unlawful acts and
reflects that despite his numerous interactions with the juvenile court, his conduct not only
continues, but escalates. Moreover, based upon the number of bench warrants issued, it reveals a
pattern of absconding from placements designed to provide needed treatment. Although not
iterated by the juvenile court, this factor undoubtedly supports the State’s motion to transfer.
(e) § 43-276(f) - Best Interests of Juvenile
The juvenile court stated that it would be in Anfernee’s best interests “to engage in and
complete a rehabilitative program such that he no longer would pose a risk to public safety.”
Anfernee notes that the court failed to state whether this program would occur in juvenile or adult
court but that according to his probation officer, the juvenile court would be able to order such
program.
While it is true the juvenile court could order a rehabilitative program, that does not mean
Anfernee would be amenable to it. In the 3 years that Anfernee has been offered services, he has
failed to turn his life around. We agree it would be in Anfernee’s best interests to complete a
rehabilitative program to eliminate his threat to public safety, but based upon the evidence, this
appears to be best done under the jurisdiction of adult court.
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(f) § 43-276(g) – Consideration of Public Safety
Anfernee argues that the juvenile court failed to consider that his most recent offenses were
uncharacteristic of him and implies that this somehow negates the risk he poses to the public.
Although Anfernee may not have had a prior history of drug use or an extensive history of violent
offense, being in possession of methamphetamine and a firearm when prohibited to possess one,
does, indeed, raise concerns for the public’s safety.
(g) § 43-276(h) – Ability to Appreciate Seriousness of Conduct
The juvenile court determined that Anfernee was ambivalent to the nature and seriousness
of his conduct. Anfernee contends this is contrary to the probation officer’s observations of him.
However, the juvenile court based its determination upon Anfernee’s repeat offenses despite him
having been under the court’s jurisdiction for an extended period of time. His track record supports
the court’s factual finding.
(h) § 43-276(i) – Juvenile’s Best Interests Versus Public Security
The juvenile court determined that when balancing Anfernee’s best interests with that of
public security, it may require Anfernee to be under supervision for a period extending beyond his
19th birthday. Anfernee argues that “the security of the public could reasonably be maintained by
retaining jurisdiction” until he reaches 19 years of age. Brief for appellant at 24.
The record does not support a likelihood that Anfernee can be rehabilitated by his 19th
birthday; therefore, the court did not err in determining that the security of the public may require
Anfernee to be under supervision for a period extending beyond his minority.
(i) § 43-276(l) – Use or Possession of Firearm
The juvenile court observed that Anfernee admitted to being in possession of a firearm at
the time of his arrest, and that it was stolen. Similar to his argument regarding § 43-276(g),
Anfernee contends this was an anomaly and the court failed to consider that.
Anomaly or not, whether the juvenile has acknowledged unauthorized possession of a
firearm is relevant in considering whether the case should be transferred to adult court. Again, it
is indicative of the escalating behaviors in which Anfernee was engaging and supports a transfer
to adult court.
(j) § 43-276(o) – Other Relevant Matters
The juvenile court found no other relevant matters to consider; however, Anfernee argues
it should have considered his efforts at rehabilitation, his mental health, and his juvenile
propensities. Contrary to Anfernee’s arguments, the court did consider the rehabilitative efforts
that have been made, albeit in conjunction with other factors outlined in § 43-276. And a review
of those efforts supports a conclusion that juvenile probation has been unsuccessful.
Our review of the record reveals a troubled young man who has been under the supervision
of the juvenile court since 2019. At the time of the transfer hearing, Anfernee was 17½ years old.
Despite an array of services and placement at every level of supervision available to juvenile
probation, Anfernee continues to rebel and the offenses have become more serious. In balancing
public protection and societal security against the practical and nonproblematical rehabilitation of
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Anfernee, we find that a preponderance of the evidence supports a transfer of Anfernee’s case to
adult court.
VI. CONCLUSION
We conclude that the juvenile court did not abuse its discretion when it granted the State’s
motion to transfer the case to county court. We therefore affirm the order of the juvenile court.
AFFIRMED.
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