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09/11/2018 01:08 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                   STATE v. COMER
                                                Cite as 26 Neb. App. 270




                                        State of Nebraska, appellee, v.
                                         Deyvion L. Comer, appellant.
                                                    ___ N.W.2d ___

                                         Filed August 28, 2018.   No. A-18-133.

                1.	 Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
                    Error. A trial court’s denial of a motion to transfer a pending criminal
                    proceeding to the juvenile court is reviewed for an abuse of discretion.
                2.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                3.	 Courts: Juvenile Courts: Jurisdiction. In determining whether a case
                    should be transferred to juvenile court, a court should consider those
                    factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016). 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. It is a bal-
                    ancing test by which public protection and societal security are weighed
                    against the practical and nonproblematical rehabilitation of the juvenile.
                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: 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.

                 Appeal from the District Court for Douglas County: W.
               Russell Bowie III, Judge. Affirmed.
                 Thomas C. Riley, Douglas County Public Defender, and
               Korey T. Taylor for appellant.
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              26 Nebraska A ppellate R eports
                         STATE v. COMER
                      Cite as 26 Neb. App. 270

  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.

  Pirtle, Bishop, and A rterburn, Judges.

  Pirtle, Judge.
                       INTRODUCTION
   Deyvion L. Comer was 15 years old when he was charged
in the district court for Douglas County with two counts of
robbery. His motion to transfer the case to juvenile court
was overruled. Comer appeals, assigning error to the denial
of the motion to transfer this case to the juvenile court.
We affirm.

                       BACKGROUND
   On December 1, 2017, Comer was charged with two counts
of robbery, both Class II felonies. The charges stemmed from
events alleged to have occurred on September 27 and October
24, 2017, in Douglas County, Nebraska. Comer was 15 years
old at the time, and the charges were filed in the Douglas
County District Court.
   Comer filed a motion to transfer the case to juvenile court
on January 25, 2018, and a hearing was held on the motion on
January 26. The district court denied the motion to transfer in
an order filed on February 5.
   The State offered six exhibits, including a copy of Comer’s
local criminal history, police reports of prior contacts with
law enforcement, and juvenile court dockets for cases Nos.
JV 17-3, JV 17-729, and JV 17-1903.
   Case No. JV 17-3 involves allegations of robbery, theft
by unlawful taking, and obstructing a peace officer, crimes
which were alleged to have occurred on January 2, 2017.
Comer admitted to the charges of theft by unlawful taking and
obstructing a peace officer. Comer was placed under the super-
vision of a probation officer and was ordered to attend “Youth
Links.” Shortly thereafter, he was ordered to be placed in a
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                         STATE v. COMER
                      Cite as 26 Neb. App. 270

group home at Boys Town. He absconded from “Youth Links”
before he could be transported to Boys Town.
   On April 20, 2017, Comer was charged in case No.
JV 17-729 with criminal impersonation and obstructing a
peace officer. Comer admitted to the charge of obstructing a
peace officer, and the other charge was dismissed. Comer was
adjudicated under Neb. Rev. Stat. § 43-247(1) (Reissue 2016).
   In case No. JV 17-1903, Comer was charged with robbery,
use of a deadly weapon to commit a felony, and obstructing
a peace officer, crimes which were alleged to have occurred
“[o]n or about the 25th day of October, 2017.” Comer was
adjudicated as a child within the meaning of § 43-247(2) and
was ordered to be placed at Boys Town.
   The circumstances of the first count in this case involve
the robbery of a pizza delivery driver. The driver allegedly
arrived at the stated address for the order where he was met
by two males. The driver handed them the food, and they indi-
cated that their friend was approaching with the money. The
driver was struck in the side of the neck, while the three males
fled with the food.
   The second count of robbery in this case was dismissed
because it had been the subject of the adjudication in case No.
JV 17-1903. The police reports regarding that incident reflect
that an order for pizza was made on October 24, 2017, and
the driver was unable to find the apartment number with the
information he had been provided. When the driver returned
to his vehicle, he was confronted by two males. One suspect
“pinn[ed]” the driver against his vehicle, displayed a hand-
gun, and instructed the driver to “‘give me everything that
you got.’” The driver refused, and the suspect stated, “‘I will
shoot you’” and “‘nothing bad if you give me all your stuff.’”
The second suspect removed the pizza from the delivery bag
in the driver’s vehicle. The driver was able to push away the
suspects, and he drove away. The driver picked Comer from
a photographic lineup and identified him as the suspect who
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                         STATE v. COMER
                      Cite as 26 Neb. App. 270

had displayed the handgun. Comer’s cell phone was used to
place the orders to the pizza restaurants.
   At the transfer hearing, Comer offered the testimony of
his juvenile probation officer, Ashley Johnson. Johnson had
supervised Comer since May 2017. Comer was placed in Boys
Town from May 1 to August 21, 2017, and Johnson testified
that Comer had done well during that time.
   Johnson stated that Comer had a “fairly traumatic, chaotic
history growing up.” Comer was offered services under “other
juvenile dockets,” including “shelter and crisis stabilization,
a chemical dependency evaluation, psychological evaluation,
[intensive family preservation services,] and . . . individual
therapy.” Johnson testified that Comer was a member of a
gang and that he associates with other known gang members.
Gang intervention services were ordered at one time, but there
is no record that Comer participated. Johnson could not say
whether Comer’s lack of participation was his choice or due to
his previous probation officer.
   Johnson testified that Comer ran away from his group home
placement at Boys Town. While he was “on the run,” he was
charged with two separate robberies: the one at issue in this
case and the crimes charged in case No. JV 17-1903. She
stated that Comer “can do very well in structure” and that he
did not have any behavior issues or violations while he was at
Boys Town. She opined that he would benefit from a structured
rehabilitative environment and the services which could be
provided at Boys Town.
   Comer also offered the testimony of his family teacher, or
“house parent,” at Boys Town. Comer lived with the fam-
ily teacher, his wife and son, an assistant family teacher, and
other youths assigned to the home. Comer was in the home
for approximately 3 months. The family teacher testified that
Comer was “doing great” before he ran away from their home.
He testified that he was “shocked” when Comer ran away and
committed crimes. Comer had been attending and doing well
in school, started participating in activities, and was on the
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                          STATE v. COMER
                       Cite as 26 Neb. App. 270

football team. The family teacher testified that he was willing
to work with Comer if he was to return to the home.
   The district court took the motion to transfer under advise-
ment and denied it in a written order entered February 5,
2018. In its order, the district court stated that it had reviewed
the statutory factors found in Neb. Rev. Stat. §§ 29-1816
(Supp. 2017) and 43-276 (Reissue 2016). Ultimately, after
weighing the statutory factors, the district court denied the
motion to transfer this matter to the separate juvenile court of
Douglas County.
                  ASSIGNMENT OF ERROR
   Comer assigns the district court erred by denying his motion
to transfer to juvenile court.
                   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
363 (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.
                           ANALYSIS
Jurisdiction.
   When a juvenile seeks to transfer a criminal case from
county or district court to juvenile court, § 29-1816(3)(c) pro-
vides that “[a]n order granting or denying transfer of the case
from county or district court to juvenile court shall be consid-
ered 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 inter-
locutory appeals became effective August 24, 2017. Comer has
properly perfected his appeal from the district court’s denial
of his motion to transfer his criminal proceeding to the juve-
nile court.
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                          STATE v. COMER
                       Cite as 26 Neb. App. 270

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 court over juvenile offenders who (1) are 11 years of
age or older and commit a traffic offense that is not a felony or
(2) are 14 years of age or older and commit a Class I, IA, IB,
IC, ID, II, or IIA felony. Actions against these juveniles may
be initiated either in juvenile court or in the county or district
court. In the present case, the allegations against Comer put
him within this category of juvenile offenders.
   When an alleged offense is one over which both the juvenile
court and the county or district court can exercise jurisdiction,
a party can move to transfer the matter. For matters initiated
in county or district court, a party can move to transfer it to
juvenile court pursuant to § 29-1816(3).
   In the instant case, when Comer moved to transfer his case
to juvenile court, the district court conducted a hearing pursu-
ant to § 29-1816(3)(a), which requires consideration of the fol-
lowing factors set forth in § 43-276:
      (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 agrees to participate in mediation;
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                         STATE v. COMER
                      Cite as 26 Neb. App. 270

      (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
such hearing, and “[a]fter considering all the evidence and rea-
sons 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).
   [3,4] As the Nebraska Supreme Court has explained, in
determining whether a case should be transferred to juve-
nile court, a court should consider those factors set forth in
§ 43-276. “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.” State v. Stevens,
290 Neb. 460, 465, 860 N.W.2d 717, 725 (2015). It is “a bal-
ancing test by which public protection and societal security are
weighed against the practical and nonproblematical rehabilita-
tion of the juvenile.” Id. “The burden of proving a sound basis
for retention lies with the State.” Id.
   Comer argues that the State failed to meet its burden and
that the district court abused its discretion in failing to grant
the transfer. We disagree.
   Summarized, the evidence at the transfer hearing showed
Comer was a gang member who was alleged to have com-
mitted crimes according to multiple juvenile court dockets.
The evidence shows that Comer participated in services and
activities and made some progress at Boys Town, but he
absconded more than once and engaged in further criminal
behavior.
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              26 Nebraska A ppellate R eports
                         STATE v. COMER
                      Cite as 26 Neb. App. 270

   In its order denying Comer’s motion to transfer, the district
court considered the applicable factors listed in § 43-276 and
made specific findings. After weighing the various factors, the
district court denied the transfer.
   The record shows the court considered the nature of the
crime and the amount of violence involved, Comer’s age and
motivation for the crime, and the type of treatment Comer
may be amenable to. The court considered Comer’s criminal
history, as well as Comer’s progress and participation dur-
ing his placement at Boys Town. The court considered the
decision to abscond from Boys Town, Comer’s “numerous
missing juvenile reports,” and “the best interests of [Comer]
and the security of the public.” The court noted that Comer
would turn 19 years old in 2021, leaving him with “sufficient
time for meaningful involvement,” if there was evidence that
he would participate. However, the court found that Comer’s
actions during his previous juvenile cases “indicate a desire to
be treated as an adult.”
   Comer argues that there is evidence he would be amenable
to services and that there are a number of services still avail-
able to him through juvenile probation. He argues that he had
not had any “higher-level” services while on probation, includ-
ing “multi-systemic therapy, out-of-state group homes[,] and
‘last resort’ programming in Kearney.” Brief for appellant at
16. Comer also argues the district court concluded that “the
juvenile court does not have the ability to provide any ben-
efit to . . . Comer.” Id. at 23. This assertion is inaccurate and
does not reflect the actual conclusion of the district court. The
court listed a number of services which had been and contin-
ued to be available to Comer, but noted that “[i]t is not pos-
sible to provide services if the person to be served absconds
from the place of service.” Ultimately, the court found that
“the best interests of [Comer] and security of the public may
require that treatment, supervision/detention continue beyond
[his] majority.”
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                         STATE v. COMER
                      Cite as 26 Neb. App. 270

   We note that Neb. Rev. Stat. § 29-2204(5) (Reissue 2016)
provides:
      Except when the defendant is found guilty of a Class IA
      felony, whenever the defendant was under eighteen years
      of age at the time he or she committed the crime for
      which he or she was convicted, the court may, in its dis-
      cretion, 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.
   Further, individuals in county or district court can be placed
on probation with conditions related to the rehabilitation of
the offender. Neb. Rev. Stat. § 29-2262(2) (Reissue 2016);
In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391
(2018). And adult probation can work with an offender for up
to 5 years. Neb. Rev. Stat. § 29-2263(1) (Reissue 2016); In re
Interest of Steven S., supra.
   Comer was under 18 years of age when he allegedly com-
mitted the charged crimes. Thus, should the court determine
that Comer’s behavioral and therapeutic needs would be bet-
ter handled at the juvenile level, the district court has the
discretion to weigh the merits of disposition under either the
Nebraska Juvenile Code or the Nebraska Criminal Code. See
State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018). See, also,
In re Interest of Steven S., supra.
   In addition to Comer’s argument that the court failed to
consider all treatment services to which he would be ame-
nable, he asserts that the court failed to consider his ability
to appreciate the nature and seriousness of his conduct. The
record shows the court did not make an explicit finding which
directly relates to § 43-276(1)(h). Comer “does not deny that
the charges allege violence,” and there is some evidence that
Comer was able to appreciate the seriousness of his alleged
crimes, given that he had already been charged in cases Nos.
JV 17-3 and JV 17-1903 for similar crimes involving theft
and robbery. Brief for appellant at 19. The court specifically
referenced many of the statutory factors in § 43-276(1), and
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                         STATE v. COMER
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the Nebraska Supreme Court has stated that though it would
have been preferable for the district court to refer to all the
statutory considerations, the statute does not require it to do
so. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
The denial of the motion to transfer without a specific find-
ing with regard to § 43-276(1)(h) does not constitute an abuse
of discretion.
   [5] Comer compares the circumstances of this case to sev-
eral cases in which the Supreme Court affirmed the district
court’s denial of a motion to transfer to juvenile court. Even
if the circumstances of these cases are considered to involve
more egregious behavior than that displayed in this case, we
cannot say that the evidence herein is insufficient to justify
retention in district court, particularly given our standard of
review. When a district court’s basis for retaining jurisdiction
over a juvenile is supported by appropriate evidence, it can-
not be said that the court abused its discretion in refusing to
transfer the case to juvenile court. State v. Hunt, supra. The
record in this case supports the reasoning of the district court,
and we find no abuse of discretion in denying Comer’s motion
to transfer the case to juvenile court.
                      CONCLUSION
  The judgment of the district court is affirmed.
                                                     A ffirmed.
