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State v. Tyler P.

Supreme Court of Nebraska

May 11, 2018

State of Nebraska, appellant.
Tyler P., appellee.

          1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and Error. A motion to transfer a pending criminal proceeding to the juvenile court is reviewed for an abuse of discretion.

         2. Juvenile Courts: Jurisdiction: Waiver. In deciding whether to grant the requested waiver and to transfer the proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in the light of the criteria or factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016).

         3. Courts: Juvenile Courts: Evidence. Under Neb. Rev. Stat. § 29-1816(3) (Supp. 2017), 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 jurisdiction in county court or district court lies with the State.

         5. Courts: Juvenile Courts: Jurisdiction: Evidence. There is no arithmetical computation or formula required in a county court's or district court's consideration of the statutory criteria or factors when deciding whether to grant a request to transfer to juvenile court.

         6. __:__:__:__. When a county court or district court is deciding whether to grant a motion to transfer to juvenile court, there are no weighted factors, that is, no prescribed method by which more or less weight is assigned to each factor specified by statute.

         7. __:__:__:__. When a county court or district court is deciding whether to grant a motion to transfer to juvenile court, its consideration is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile.

          [299 Neb. 960] 8. Judges: Words and Phrases. A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         9. Appeal and Error. Abuse of discretion is a highly deferential standard of review.

         10. Criminal Law: Appeal and Error. Harmless error jurisprudence recognizes that not all trial errors, even those of constitutional magnitude, entitle a criminal defendant to the reversal of an adverse trial result.

         11. Appeal and Error. Only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires a reversal.

         12. __ . When determining whether an alleged error is so prejudicial as to justify reversal, courts generally consider whether the error, in light of the totality of the record, influenced the outcome of the case.

          Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed.

          Donald W. Kleine, Douglas County Attorney, Amy G. Jacobsen, and Jameson D. Cantwell for appellant. James Martin Davis, of Davis Law Office, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann, Judge, and Martinez, District Judge.

          Funke, J.

         Tyler P. was 17 years old when he was charged in the Douglas County District Court with multiple felonies arising from a disturbance at his family's home. He filed a motion to transfer the case to juvenile court, which was sustained. The State appeals, assigning error to the grant of the motion to transfer. We affirm.



         The State filed an information in the district court for Douglas County charging Tyler with five felonies: two charges of attempted second degree murder, a Class II felony; two [299 Neb. 961] charges of use of a deadly weapon (firearm) to commit a felony, a Class IC felony; and one charge of second degree assault, a Class IIA felony.

         Tyler filed a motion to transfer the matter to juvenile court under Neb. Rev. Stat. §§ 29-1816 (Supp. 2017) and 43-261 (Reissue 2016). Tyler requested the district court waive jurisdiction of the matter to the separate juvenile court for further proceedings under chapter 43, article 2, of the Nebraska Revised Statutes.

         A juvenile transfer hearing was held by the district court at which several witnesses testified and the State offered police reports concerning the incident of September 3, 2017. Gail P.. Tyler's mother, testified about the events surrounding the incident; Dr. Terry Davis testified about Tyler's mental condition; and Heather Briggs, a juvenile probation officer, testified about the services available to Tyler in juvenile court.

         Gail testified that Tyler was born in February 2000 and that she and Dennis P. are Tyler's parents. She also testified that Tyler resided with Dennis and Gail in their home in Waterloo, Nebraska; that he was active in high school sports, including being a standout football player; that he had minimal disciplinary problems at home or at school; and that he had never been in juvenile court.

         She further testified that on the evening of September 2, 2017, Tyler had a group of friends at the house to watch a football game. In the early morning hours of September 3, Gail noticed activity outside the house so she and Dennis went to investigate. In doing so, they discovered that the interior of a barn on their property had significant damage and they found beer cans present. As a result, Dennis and Gail confronted Tyler about consuming alcohol and breaking the rules. In doing so, they noticed that Tyler was unsteady on his feet and lisping and, at one point, he sat down on the ground and stared blankly at them. They demanded that Tyler give them his car keys and cell phone in an effort to punish him for his behavior. At that time, Tyler became confrontational [299 Neb. 962] and began to verbally and physically abuse Dennis and Gail and block their entrance into the house. Tyler then ran to a shed and returned with a baseball bat. Dennis called the 911 emergency dispatch service for assistance, which caused Tyler to chase Dennis and threaten him with the bat. Eventually Dennis and Gail were able to gain access to the house and lock the door. Tyler struck the door of the house with the bat several times and then gained access to the house through another door.

         Gail was again confronted by Tyler in the family room of the home. At that time, she noticed that "his eyes were black" and he was laughing in a "creepy" manner. Tyler then ran toward the family's gun safe. Dennis lunged at Tyler and grabbed his legs in an effort to stop him from reaching the guns. Tyler broke free of Dennis and began stomping on his head and kicking him in the back. Tyler picked up an oversized ottoman in an effort to smash Dennis with it. Gail then began to kick Tyler in an effort to distract him from hurting Dennis further. Tyler then punched Gail in the head and struck her in the legs with the bat. After striking Gail, Tyler fled the house. While outside, Gail could hear Tyler laughing, yelling, and smashing things around the property. Gail testified that it was a very foggy night, so she could not see him at the time. Dennis and Gail exited the home and were standing on a patio when Tyler emerged from the fog. He appeared "eerily calm" and was saying that it was too late for him, that he was not good at football, and that he did not deserve to live. Tyler then went into the house and retrieved a shotgun.

         Law enforcement arrived, and Tyler fled on foot. Deputies attempted to locate Tyler on the property, but due to the intense fog, they were not able to see him. Tyler then approached Gail and pointed the gun directly at her. Gail pleaded for Tyler not to shoot her and to put down the gun. Tyler then ran off again. Gail then heard gunfire and saw that Tyler had been shot.

         Gail also testified that though she did not see Tyler shoot at the officers, she knew that he had been accused of doing so. [299 Neb. 963] While in the hospital, Gail told Tyler that he had shot one of the officers.

         Davis, a board-certified psychiatrist who is also certified in forensic psychiatry and addiction psychiatry, testified on behalf of Tyler. Davis testified that while playing a football game on September 1, 2017, Tyler had sustained four head-to-head significant impacts which most likely caused a concussion. Davis stated that Tyler had no memory of the events occurring on September 3 and that it was his diagnosis that Tyler suffered from neurocognitive disorder due to a traumatic brain injury. Davis based his diagnosis on the evaluation he completed of Tyler, evaluations completed by Tyler's pediatrician and a neuropsychologist after the shooting, and an interview of Gail in which she detailed Tyler's behavioral changes on the day of the incident. Davis noted that symptoms exhibited by Tyler, including such things as a personality change, the flatness of his affect and emotional display, his aggressive behavior, his change of smell and taste, and his hypersensitivity to sound and light are fairly classic signs of a traumatic brain injury. Davis testified that though Tyler had a blood alcohol content of .148, his behavior was not the result of alcoholic intoxication or an alcoholic blackout.

         Davis opined that

Tyler was in an amnestic episode and did not fully understand or appreciate what he was doing or that it was wrong, since he has no memory of it now. Was he able to intentionally carry out specific motor actions? Yes. He was able to get a baseball bat. He was able to chase after his mother. He was able to go to the gun cabinet and get a gun. He was able to load the gun, I assume, and fire it. But in terms of his intent to harm anyone ...

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