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03/27/2018 08:10 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                                 STATE v. BLIMLING
                                                Cite as 25 Neb. App. 693




                                        State of Nebraska, appellee, v.
                                        Seth Ehren Blimling, appellant.
                                                    ___ N.W.2d ___

                                         Filed March 27, 2018.    No. A-17-1079.

                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.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
                    presented for review, it is the duty of an appellate court to determine
                    whether it has jurisdiction over the matter before it.
                4.	 Courts: Juvenile Courts: Jurisdiction: Final Orders: Appeal and
                    Error. An order granting or denying transfer of a case from county or
                    district court to juvenile court shall be considered a final order for the
                    purposes of appeal.
                5.	 Courts: Juvenile Courts: Jurisdiction: Proof. After considering all the
                    evidence and reasons presented by both parties, the case shall be trans-
                    ferred to juvenile court unless a sound basis exists for retaining the case
                    in county court or district court. The burden of proving a sound basis for
                    retention lies with the State.
                6.	 Courts: Juvenile Courts: Jurisdiction: Evidence. When a court’s basis
                    for retaining jurisdiction over a juvenile is supported by appropriate evi-
                    dence, it cannot be said that the court abused its discretion in refusing to
                    transfer the case to the juvenile court.

                 Appeal from the District Court for Burt County: John E.
               Samson, Judge. Affirmed.
                    Timothy S. Noerrlinger for appellant.
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                        STATE v. BLIMLING
                       Cite as 25 Neb. App. 693

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

  Moore, Chief Judge, and Bishop and A rterburn, Judges.

  A rterburn, Judge.
                       INTRODUCTION
   After giving a statement to police in which he admitted
to intentionally hitting a classmate with his car, Seth Ehren
Blimling was charged in the district court for Burt County with
attempted first degree murder, assault in the second degree,
and failing to render aid. Blimling was 15 years old at the time
of the incident. The district court denied Blimling’s motion
to transfer his case to juvenile court. Blimling appeals from
the district court’s decision here. Upon our review, we do
not find that the district court abused its discretion in deny-
ing Blimling’s motion to transfer his case to juvenile court.
Accordingly, we affirm.

                        BACKGROUND
   In February 2017, Blimling was 15 years old and a sopho-
more at Tekamah-Herman High School in Tekamah, Nebraska.
On the morning of February 23, Blimling observed S.S., who
was his “[e]x-best friend,” and another classmate driving
toward S.S.’ house. Blimling followed them in his vehicle, and
when they pulled into S.S.’ driveway, Blimling parked in front
of a nearby house. S.S. started to approach Blimling’s vehicle,
and Blimling “floored it as fast as it [could] go and . . . drove
towards [S.S.]” Blimling hit S.S. with his car, causing S.S.’
head to hit and crack the windshield of the vehicle and caus-
ing S.S. to fall to the ground. Blimling left the scene of the
accident and drove to a church parking lot, where he called law
enforcement and reported what he had done.
   In his statement to law enforcement, Blimling stated that it
had “felt good” to hit S.S. with his car. Blimling also stated
that when he saw S.S. get up after being hit, he thought,
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                        STATE v. BLIMLING
                       Cite as 25 Neb. App. 693

“‘Darn’ him.” Blimling admitted that he had thought about
hurting S.S. the night before this incident and stated that when
he had seen S.S. driving home that morning, he thought, “‘Hey
there’s [S.S.,] why not.’” He stated, “I also followed him for
a bit too. I hated him.” Blimling told law enforcement that
he was upset with S.S. because S.S. had been harassing him
using social media and had broken a golf club that belonged to
Blimling’s great-grandfather. In text messages to another class-
mate about this incident, Blimling stated that he “wanted him
hurt bad” and that he “wanted him dead.”
   Another classmate of Blimling’s observed the incident and
provided a statement to law enforcement. He reported that
Blimling “took off and hit [S.S.], he didn’t stop or nothing[,]
he kept on driving.” Another student reported a somewhat sim-
ilar incident involving Blimling. The student reported that one
day as he was walking home, Blimling, who was driving a car,
slowly followed the student for a distance. When the student
crossed the street, Blimling drove very close to him and said,
“‘Better watch your back.’”
   The State filed an information charging Blimling with
count I: attempted first degree murder, in violation of Neb.
Rev. Stat. §§ 28-201(1)(b) and 28-303(1) (Reissue 2016),
a Class II felony; count II: assault in the second degree, in
violation of Neb. Rev. Stat. § 28-309(1)(a) (Reissue 2016), a
Class IIA felony; and count III: failure to render aid, in viola-
tion of Neb. Rev. Stat. § 60-697 (Reissue 2016), a Class IIIA
felony. Shortly after the State filed the information, Blimling
filed a motion requesting the district court to waive jurisdiction
and transfer the case to juvenile court.
   The district court conducted an evidentiary hearing on
Blimling’s motion. The evidence presented at the hearing
reflects that Blimling was born in August 2001. Although
Blimling was 15 years old at the time of the offenses in
February 2017, he had turned 16 years old by the time of
the evidentiary hearing, which was held on August 11, 2017.
Both of Blimling’s biological parents testified at the hearing.
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                       STATE v. BLIMLING
                      Cite as 25 Neb. App. 693

In addition, a probation officer testified about various treat-
ment alternatives.
   Steve Ortmeier, a chief deputy probation officer, testified
to the various treatment alternatives that would be available
for Blimling should his case remain in the district court as
opposed to the juvenile court. Ortmeier testified that with the
exception of an in-home intensive family preservation pro-
gram, the remaining probationary programs Blimling could
be ordered to participate in would be available as part of both
a juvenile or adult probation order. He further noted that an
adult probation order could remain in effect for 5 years from
the date of sentencing. A juvenile probation order would begin
at disposition and end when Blimling turned 19 years old.
Ortmeier testified to sanction alternatives in both adult and
juvenile court.
   Blimling’s father, Patrick Blimling (Patrick), testified that
in February 2017, Blimling had been residing with him for
approximately 4 years. Patrick testified that in February 2017,
Blimling was a sophomore in high school. However, he was
behind on his credits due to some “behavioral issues” that
had occurred during the school year. Patrick confirmed that
Blimling had an individualized education plan due to his
behavioral issues.
   During the 4 years Blimling resided with Patrick, Blimling
had spent some time in counseling to address his attention
deficit hyperactivity disorder (ADHD). However, in the months
leading up to February 2017, Blimling was not engaged in any
type of counseling. In addition, Patrick testified that Blimling
used to take medication for his ADHD condition when he was
younger, but that he had stopped taking the medication dur-
ing his eighth grade year because of the side effects. Patrick
testified that he did not feel that Blimling’s ADHD condi-
tion was “bad enough” to warrant the medication that had
been prescribed.
   Patrick testified that Blimling and S.S. were good
friends prior to February 2017. In the weeks leading up to
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                       STATE v. BLIMLING
                      Cite as 25 Neb. App. 693

February 23, 2017, however, a change in their relationship
had occurred. Patrick described the relationship as having
“deteriorated” and testified that Blimling’s demeanor as a
result of the problems in the relationship was “anger, a little
bit of disappointment, upset.” Patrick recounted an incident
where S.S. had broken a golf club as a possible source of the
relationship problems.
   Blimling’s mother, Bridgette Kult (Bridgette), also testi-
fied at the hearing. She testified that in February 2017, she
had custody of Blimling pursuant to a court order, but she
had been allowing him to live with Patrick since approxi-
mately June 2014. She agreed with Patrick’s testimony that
Blimling had an individualized education plan at school due
to his behavioral issues. She explained that these issues were
mostly due to Blimling’s ADHD. He was easily distracted
and fidgety during classes. Bridgette testified that she did
not recall being consulted about Blimling’s stopping his
ADHD medication.
   The bulk of Bridgette’s testimony focused on events which
occurred after February 23, 2017. Bridgette testified that
Blimling lived with her for a period of time after February
23. Blimling lived with Bridgette, her husband, and Blimling’s
half sister after he was released from custody in April 2017.
However, in mid-April, there was an incident between Blimling
and Bridgette’s husband that caused Blimling to leave their
residence. Bridgette testified that Blimling and her husband
had a confrontation after Blimling failed to listen to her
repeated instructions. “[I]t was verbal shortly, then it elevated
and became physical very briefly, [and] the boys went their
separate ways.” Blimling was unable to calm himself down
after this incident, and as a result, he was hospitalized for
8 days at a mental health facility. Blimling told the medical
professionals at the facility that he had ideations about killing
his stepfather. When he was released from inpatient care, he
“object[ed]” to coming back to Bridgette’s home because he
did not want to be around his stepfather. At the time of the
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                       STATE v. BLIMLING
                      Cite as 25 Neb. App. 693

evidentiary hearing, Blimling was residing with his mater-
nal grandmother.
    Bridgette testified that by the time of the hearing, Blimling
was being treated by multiple mental health care provid-
ers. In addition, he was taking medication to control his
ADHD and to reduce stress and anxiety. Bridgette testified
that Blimling’s behaviors have improved since his inpatient
treatment and that his current outpatient therapy is helping
Blimling perform at school and at home. In fact, Bridgette
testified that Blimling is enrolled in high school in Omaha,
Nebraska; has caught up with all of his credits; and has not
had any misconduct reports from the school. At the time of
the hearing, Blimling was ready to begin his junior year of
high school. Bridgette plans to continue with all of Blimling’s
current therapeutic services.
    Bridgette testified that she considers Blimling to be an
“immature” 16 year old. She testified that he does not drive,
does not have a job, and does not have a way of support-
ing himself.
    In addition to the testimony of both of Blimling’s parents,
multiple exhibits were admitted into evidence at the eviden-
tiary hearing. These exhibits include police reports relating
to the February 23, 2017, incident; Blimling’s school records
from prior to February 23; and his mental health records from
after February 23, including from his inpatient treatment.
    Information from the exhibits indicates that Blimling had
little criminal history. Before February 23, 2017, he had one
traffic citation for careless driving, which he received on
February 15. Despite Blimling’s lack of criminal history, his
school records reflect that Blimling had a pattern of disobeying
authority figures. These records indicate that Blimling regu-
larly assaulted other students and verbally abused his teach-
ers and the school staff. Examples of Blimling’s behaviors
at school included the following: urinating on the bathroom
floor, drawing on the walls, throwing a chair when asked to
comply with school rules, stabbing another student’s textbook
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                       STATE v. BLIMLING
                      Cite as 25 Neb. App. 693

with a pen, using crude language with teachers, and hitting
other students.
   Blimling’s mental health records indicate that he has been
diagnosed with “disruptive mood dysregulation disorder” and
ADHD. When Blimling was admitted to the mental health
facility in April 2017, he reported having suicidal thoughts and
feeling homicidal toward his stepfather. Blimling also reported
that when his stepfather had confronted him about not listen-
ing to Bridgette, it was Blimling who initiated the physical
confrontation. He reported that “when he gets angry, nothing
can bring him back down.” Blimling reported that he was
using marijuana during this time period. Additionally, Blimling
reported that prior to February 23, 2017, he was using mari-
juana on a weekly basis.
   When Blimling was released from inpatient treatment, men-
tal health professionals believed his homicidal feelings and
thoughts had dissolved. However, Blimling continued to strug-
gle. As late as June 2017, Bridgette reported to Blimling’s
therapist that he was not showing much improvement and that
he needed to learn “‘to let things go.’” In July 2017, Bridgette
reported that Blimling was being difficult.
   Reports from Blimling’s therapists indicate that Blimling
has made some progress in therapy since April 2017. He has
learned skills to help him address his anger. In addition, he
expressed a desire to keep his anger controlled and expressed
some regret about what he did to S.S. in February 2017.
However, Blimling continues to refuse to see his stepfather.
He has also told his therapists that he is not sure that he can
apply his coping skills if “a huge conflict or cris[i]s arises.”
Blimling desires to return to live with Patrick because there are
“no rules” at Patrick’s house. Blimling indicated that Patrick
had recently purchased him a dirt bike and was planning on
purchasing a car for him in the near future.
   In its written order denying Blimling’s motion to transfer,
the district court found, after examining all the relevant fac-
tors, that the severity of Blimling’s offenses coupled with his
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          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                        STATE v. BLIMLING
                       Cite as 25 Neb. App. 693

history of disruptive and assaultive behaviors at school and his
recurring homicidal ideations several months after the current
offenses would require rehabilitative and security measures
beyond the period of his minority.
   Blimling appeals.

                 ASSIGNMENT OF ERROR
   Blimling contends that the district court erred in denying
his motion to transfer his case 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. Bluett, 295 Neb. 369, 889 N.W.2d
83 (2016). 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, rea-
son, and evidence. Id. We note that in the recently decided case
of In re Interest of Steven S., 299 Neb. 447, ___ N.W.2d ___
(2018), the Nebraska Supreme Court reaffirmed this standard
of review for cases originally filed in adult court.

                            ANALYSIS
                            Jurisdiction
   [3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Id. For an appellate court
to acquire jurisdiction over an appeal, there must be either a
final judgment or a final order entered by the court from which
the appeal is taken. Id.
   [4] The Nebraska Supreme Court recently held in State v.
Bluett, supra, that a trial court’s denial of a motion to transfer
a pending criminal proceeding to the juvenile court was not a
final, appealable order. That holding has since been statutorily
overruled by 2017 Neb. Laws, L.B. 11, § 1, which amended
Neb. Rev. Stat. § 29-1816 (Reissue 2016) to provide that an
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               25 Nebraska A ppellate R eports
                        STATE v. BLIMLING
                       Cite as 25 Neb. App. 693

“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 to further provide that, upon
entry of such an order, “any party may appeal to the Court of
Appeals within ten days.” In the instant case, Blimling has
properly perfected his appeal from the district court’s denial
of his motion to transfer his criminal proceeding to the juve-
nile court.

                       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 these juveniles
may be initiated either in the juvenile court or in the county or
district court. In the present case, the charge of attempted first
degree murder, a Class II felony, and the charge of assault in
the second degree, a Class IIA felony, against Blimling put him
within this category of juvenile offenders.
   When an alleged offense is one over which both the juve-
nile 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 § 29-1816(3).
   In the instant case, when Blimling moved to transfer his case
to juvenile court, the district court conducted a hearing pursu-
ant 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
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                        STATE v. BLIMLING
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      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.
   [5] 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).
As the Nebraska Supreme Court has explained, in conduct-
ing 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
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                       STATE v. BLIMLING
                      Cite as 25 Neb. App. 693

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.
   In this case, the district court issued a detailed 10-page
order explaining its consideration and weighing of the vari-
ous factors set forth in § 43-276. In the order, the court
found that Blimling’s actions on February 23, 2017, were
premeditated and clearly showed that Blimling “had homi-
cidal thoughts before, during, and subsequent to his action of
running over his ex-best friend with a motor vehicle.” In fact,
the court found that Blimling desired to seriously harm S.S.
and was disappointed that S.S. only suffered minor injuries.
The court also found that in the months since Blimling ran
over S.S., he had exhibited homicidal thoughts toward his
stepfather. The court stated, “The two incidents show a trou-
bling violent pattern.” The court also stated, “The evidence
of premeditation and lack of remorse after both incidents is
somewhat alarming.”
   In its order, the district court acknowledged that Blimling
had been undergoing therapy with multiple mental health
professionals for more than 3 months prior to the evidentiary
hearing. However, the court found that the mental health
notes submitted into evidence “did not reflect substantial
improvement in [Blimling’s] malevolent thought process.” The
court stated:
      The Court has a concern that a successful mental
      health regimen may very well require treatment beyond
      [Blimling’s] nineteenth birthday — especially in light of
      homicidal ideation against not only the victim in this case
      but [Blimling’s] stepfather as well as the actions taken to
      fulfill the homicidal ideation against the victim.
   The court indicated that Blimling did not have a crimi-
nal history. However, he did have a pattern of behavioral
issues and a lack of respect for others which was evidenced
by his school records. This history of behavioral issues at
school coupled with Blimling’s homicidal ideations and lack
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                        STATE v. BLIMLING
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of remorse “indicates that the safety of the public could be in
jeopardy until [Blimling] has successfully completed mental
health therapy.”
   Ultimately, the court found that multiple factors set forth
in § 43-276 weighed in favor of retaining jurisdiction of the
case in district court, including the treatment options available
to Blimling, Blimling’s motivation for committing the current
offenses, the violence associated with Blimling’s offenses,
Blimling’s current age and the potential length of required
treatment, Blimling’s best interests, the consideration of public
safety, and Blimling’s ability to appreciate the nature and seri-
ousness of his conduct. Based on its consideration of these fac-
tors, and all of the factors delineated in § 43-276, the district
court refused Blimling’s request to transfer the proceedings to
the juvenile court.
   In this appeal, Blimling challenges the weighing process
employed by the court in reaching its decision. He argues that
the court placed too much weight on the nature and circum-
stances of the offenses and too little weight on his “age, imma-
turity, lack of criminal history, and treatment efforts.” Brief for
appellant at 7. He also argues that the court erred in finding
that he would require treatment beyond the age of 19.
   In our review of the record, we find support for the district
court’s finding that Blimling will require treatment beyond
his 19th birthday. Blimling was already 16 years old at the
time of the evidentiary hearing. The evidence reveals that he
suffers from serious mental health issues which are not yet
adequately controlled through medication or through thera-
peutic intervention. Perhaps because of these mental health
issues, Blimling has demonstrated a pattern of violent, aggres-
sive, and offensive behavior at school, in the community, and
at home. The evidence strongly suggests that Blimling will
likely need treatment for more than the 21⁄2 years he has left
before he reaches the age of majority.
   [6] In our review, we do not consider lightly Blimling’s
youth or his lack of any criminal history. However, much like
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the district court, we cannot ignore the violent and disturb-
ing nature of Blimling’s crime, his lack of remorse, or his
continuing anger and homicidal ideations. We further cannot
ignore that the events for which Blimling has been charged
are not isolated given the history of assaultive and disruptive
behavior noted in his school records and the separate incident
wherein Blimling, who was driving a car, followed another
student and then made a threatening statement. 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 the juvenile
court. See State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733
(2009). Because there is ample evidence to support each of the
findings which led the district court to deny Blimling’s motion
to transfer, we cannot and do not conclude that it abused
its discretion.
                         CONCLUSION
   For the reasons discussed, we conclude that the district court
did not abuse its discretion in denying Blimling’s motion to
transfer his case to juvenile court. As such, we affirm.
                                                     A ffirmed.
