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State v. Leroux

Court of Appeals of Nebraska

July 10, 2018

State of Nebraska, appellee,
Amadeus L. Leroux, appellant.

         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 unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Courts: Juvenile Courts: Evidence. Under Neb. Rev. Stat. § 29-1816(3)(a) (Reissue 2016), 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. In order to retain proceedings in criminal court, the court need not resolve every statutory factor in favor of transfer 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 balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile.

         6. 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 discretion in refusing to transfer the case to juvenile court.

          [26 Neb.App. 77] Appeal from the District Court for Keith County: Donald E. Rowlands, Judge. Affirmed.

          Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder. Chaloupka & Longoria, P.C., L.L.O., and Daniel R. Stockmann, of Stockmann Law Office, for appellant.

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

          Moore, Chief Judge, and Bishop and Welch, Judges.

          BISHOP, JUDGE.


         Amadeus L. Leroux, age 15 at the time of his charged offenses, appeals from the Keith County District Court's order denying his motion to transfer his pending criminal proceeding to the juvenile court. Although more of the statutory factors set forth in Neb. Rev. Stat. § 43-276(1) (Reissue 2016) favored transferring the case than those retaining it, the statutory scheme does not provide a mathematical approach to these decisions. Further, the statutory factors are not weighted, and the trial court does not need to resolve every factor against the juvenile in deciding whether to retain the case in adult court. Finally, even if this court found the factors tipped more favorably for granting the transfer, we are constrained by our standard of review. An appellate court may determine only if the trial court abused its discretion by denying a request to transfer the case to juvenile court, and under this standard of review, we must affirm.


         A complaint was filed in the county court for Keith County by the Keith County Attorney on March 30, 2017. The complaint alleged that on or about March 28, Leroux (date of birth September 2001) intentionally committed murder in the second degree, but without premeditation, a Class IB felony, and [26 Neb.App. 78] intentionally used a knife, or other deadly weapon, to commit a felony, a Class II felony. Leroux waived a preliminary hearing, and the case was bound over to the district court on May 8. An amended information was filed, and on October 9, Leroux filed a motion to transfer jurisdiction to the juvenile court. A hearing on Leroux's motion took place on October 18; a summary of the evidence adduced at that hearing follows.

         1. Law Enforcement

         Witness for State

         Nebraska State Patrol Trooper Peter Rutherford testified that he was on duty on March 28, 2017, and was called to investigate the death of John Fratis, who he believed was 25 years old. Raylynn Garcia referred to Fratis as "her brother," but they are not biological siblings-they were raised together. Trooper Rutherford believed Fratis had moved in with Garcia at a home on "North Spruce" in Ogallala, Nebraska, in December or January, "[s]o several months leading up" to the incident. Larry Derrera also grew up in the same home as Garcia, and they "have since moved in together and have two children in common."

         Garcia and Derrera had gone to Colorado for a family event, and on their way back, they brought Leroux "to come back to Ogallala to spend some time in the area and see the lake." Once they arrived back in Ogallala, Garcia, Derrera, Leroux, Fratis, and the two minor children went to the home. Derrera, Leroux, and Fratis were drinking alcohol, and Garcia had smoked a marijuana "blunt" with Fratis. At 2 a.m., Garcia, Derrera, and the two children went to bed, while Leroux and Fratis remained in the living room. A short time later, Garcia and Derrera were awakened to the sound of fighting; Derrera saw Leroux and Fratis "kind of wrestling around with each other in conflict." Derrera separated them and told them to "cool down [and] go their separate ways." Derrera returned to bed. He later heard another commotion and went out to see Leroux and Fratis "in what he believed to be the tailend [sic] of a fight." Furniture [26 Neb.App. 79] was in disarray, a fish tank was knocked over, and a television had been knocked over and broken. Derrera again told Leroux and Fratis to "chill out," and he separated the two. (Trooper Rutherford explained that this had been taking place over several hours.) Fratis went outside to smoke, and Leroux headed to the bathroom just off the kitchen.

         Derrera returned to bed, but Garcia, who had also been awakened from the commotion, assisted with the cleanup. Garcia was "fed up . . . with the stress and fighting," so she started to get the two children changed into new clothes to put them in the car. When Garcia was in the laundry room area just off the kitchen, she heard another commotion coming from the main living area. When she rounded the corner, she saw Leroux standing next to Fratis with a knife in his hand. Garcia saw Fratis grasping his side, and "[h]e made the exclamation, What the Fuck, did you [just] stab . . . me?"

         Garcia told Trooper Rutherford that she "freaked out," grabbed the knife, and threw it into the sink. She grabbed the two children and took them out to the car, then returned to the house and retrieved her marijuana in her purse. She then drove away from the residence. Meanwhile, Derrera came out of the bedroom and saw Fratis bleeding profusely, with blood coming from his mouth and from his side. Derrera helped Fratis out of the living room and on to the front porch. At 8:15 a.m., a vehicle was flagged down and the driver, who was a dentist, transported Fratis to the local hospital.

         When processing the scene, footprints were noted leaving the residence going west along the alley just north of the residence. A few blocks away from the residence, Leroux flagged down a passing motorist, a local Ogallala resident. Leroux told the driver he had been in a fight with "six guys . . . over a video game earlier that morning." Leroux asked for a ride to a gas station. During the ride, the driver noted that Leroux had a "knot" over his left eye and some deep scratches on his left hand, which corroborated Leroux's story about the fight. Later that day, the driver "ran into" the dentist, who told him about [26 Neb.App. 80] picking Fratis up and taking him to the hospital. The driver then thought about Leroux who said he had been in a fight, so he went to the crime scene and met with Trooper Rutherford there. That prompted Trooper Rutherford to call the gas station where the driver had dropped off Leroux, and the gas station clerk knew who Trooper Rutherford was describing. The clerk said "this kid came in" and asked to borrow the clerk's telephone so he could call his mother. The clerk let him make the call, and a few minutes later, "he jumped in a car and left."

         Trooper Rutherford traced the call made by Leroux to Leroux's mother, and he also retrieved surveillance video from the gas station. The video showed Leroux getting into a vehicle with a window broken out on the driver's side. The video showed Leroux, who was wearing a white T-shirt, jeans, and white shoes. According to Trooper Rutherford, the shirt in the video "did not appear to be covered in blood." Based on information from local law enforcement, Trooper Rutherford knew the vehicle was driven by Garcia. Garcia claimed she called Leroux's mother to let her know that Leroux had been in a fight with Fratis and that Fratis was injured. Leroux's mother instructed Garcia to look for Leroux, and while Garcia was driving around looking for him, Leroux's mother called to tell her Leroux was at the gas station and to pick him up and bring him to her in Colorado. When Garcia picked Leroux up at the gas station, Leroux "proceeded to the rear of the cargo area and covered himself up with blankets." Garcia drove to Sterling, Colorado, with Leroux and the two children.

         The autopsy of Fratis showed approximately six stab wounds: one on the front of his torso, three on the left side of his torso, and two on his back. Several of the stab wounds were direct and deep; Fratis' left lung was struck once, and his heart was struck twice.

         Under cross-examination by Leroux's counsel, Trooper Rutherford acknowledged that there was a prior assault between Derrera and Fratis. Trooper Rutherford interviewed [26 Neb.App. 81] Garcia twice following Fratis' death, and he agreed she lied to law enforcement several times on substantial things. Garcia acknowledged in her second interview that she had "done cocaine" in the 24 hours before Fratis' death. Derrera had been interviewed three times and lied to law enforcement on multiple occasions. Trooper Rutherford said Derrera and Garcia had been charged with child abuse related to the presence of drugs in the home and the violent events that occurred with the two children present the day of Fratis' death.

         2. Probation Officer

         Witness for State

         Amber Pierce, a juvenile specialized probation officer, testified that she supervises only juvenile cases. Pierce met with Leroux because Leroux was under the age of 19 and there was a warrant, so probation was responsible for his placement. Pierce discussed the Youth Rehabilitation and Treatment Center (YRTC) in Kearney, Nebraska, noting there was no one currently in the YRTC with a murder conviction. There are no special programs or services specific to a murder conviction at the YRTC. Pierce testified that the average time a juvenile spends in the YRTC is 7 to 9 months and that after such period, the juvenile would be released back to the community. The YRTC does offer therapy services, which would be equivalent to outpatient services.

         Pierce also discussed the Nebraska Correctional Youth Facility (NCYF), which is under the Department of Correctional Services and is a facility specific for juveniles charged and convicted as adults. The age range of individuals jailed there is 14 years to 21 years 10 months. Pierce testified that the services available at the NCYF are more substantial than those at the YRTC. She said it was her understanding that if Leroux was convicted as an adult, he would automatically be placed at the NCYF so long as he is under the age of 19. Pierce also noted that if a juvenile came to Nebraska from Colorado, and as a result of a predisposition investigation (which she said is [26 Neb.App. 82] similar to a presentence investigation for an adult), it was recommended the juvenile go to the YRTC, the juvenile would not be transferred back to Colorado, but would instead complete the YRTC term in Nebraska.

         On cross-examination, Pierce acknowledged that it is detrimental for a juvenile to be exposed to trauma and to not receive treatment for that trauma. Pierce did not know what the provisions are for "trauma informed care" at the NCYF, nor did she know the ratio of mental health providers to juveniles at the NCYF. Pierce knew there was a psychologist and two mental health practitioners on staff; she did not know if they had additional staff. Pierce said she did not know how many "kids [were] at NCYF with that one psychologist and two [mental health practitioners]," and when offered an estimate of several hundred, Pierce said she did not know. After redirect examination of Pierce, the State rested.

         3. Defense Witness

         Tessa Frederick

         Tessa Frederick is the assistant site director at a Boys & Girls Club in Denver, Colorado, of which Leroux was a member. The club provides afterschool programs in underserved communities, offering "high yield activities in healthy lifestyles, character leadership and academic success, as well as providing community support, supporting the schools around, providing dinner, those kinds of things." Children are eligible to participate from age 6 through 18. Leroux participated in service learning projects, such as raising funds and supplies for the victims of a forest fire, and more recently, the club served food to the homeless at a Denver rescue facility. Children can be suspended or expelled from the club if they bring a weapon or drug, if they fight, or if they are disrespectful to staff.

         According to Frederick, Leroux started coming to the club, along with his older brother and younger sisters, when he was 8 or 9 years old. Leroux was a "very shy kid" and would need [26 Neb.App. 83] to be coaxed to participate in activities. He played on sports teams, was a member of a leadership group, and participated in a "computer lab." Other than for a period after the death of Leroux's father, Leroux was in attendance at the club "[b]asically every day." Frederick said that Leroux's mother "wanted a place for her kids to go after school while she worked that would be safe and purposeful."

         Frederick said that she got to know Leroux and his family well and that she would "[n]ever" describe his personality as aggressive or forceful. Rather, she described Leroux as "so quiet" and said that it took years before Leroux trusted Frederick enough to open up to her. However, Leroux "was an active listener" and "was engaged." "[W]hen it came to speaking out or doing a little bit more as far as the activities go, he was just a spectator," she said. Leroux was "a very strong reader," so Frederick would sometimes have him help the younger members in the reading program. In terms of maturity, Leroux behaved "within his age."

         Frederick testified she was not aware of Leroux doing any traveling other than with the club. She described Leroux as a "[v]ery normal, very average, just a normal 15-year-old." To her knowledge, Leroux never had a violent outburst or any type of problem interacting socially in the club, nor had he ever been suspended or thrown out of the club. The club is aware of Leroux's charges, and Frederick was not aware of any problems with the staff or other children as a result. Leroux has continued to go to the club where he does his homework and "hangs out in the peace and quiet of the teen room where there is always lots to do there, whether it's a game or activity [that] is going on, cooking club, that kind of thing and occasionally staying for a teen night."

         4. Defense Witness

         Dr. Joseph Peraino

         Dr. Joseph Peraino, from Denver, has been a clinical psychologist for over 30 years and is licensed in Colorado. He [26 Neb.App. 84] spends about half of his time in office practice, with the other half spent in forensic work. About 60 percent of his time is spent with adults, and 40 percent with teenagers. He has been doing psychological assessments since 1978.

         Dr. Peraino testified that literature indicates that for juveniles, trauma "actually affects their psychological, and to some degree depending on the severity, their brain development." Noting that "trauma [is] a distraction for anybody," Dr. Peraino said it has more impact early in life because a child does not have as much life experience. Dr. Peraino went on to state:

[S]ome children and teens will withdraw and become depressed. Others will become highly anxious. Others will not know what to do with their anxiety and essentially act out, kind of don't think clearly, and they act impulsively and get in trouble. At some level it shakes their foundation, their view of the world, and makes them not trust others.

         Dr. Peraino said that psychotherapy can be helpful and that medication can help in extreme cases if a person is severely anxious or depressed. Speaking more generally about brain development, Dr. Peraino said:

The brain continues to develop until around 25 years old. And the process of the brain maturing goes from kind of the brain stem to the back of the brain all the way to the front of the brain. So the last thing that develops is the prefrontal cortex and that is where the center of judgment is, the executive function is for individuals.
And even though you have - at a midteen level you might find somebody who is pretty bright and kind of knows the rules, they don't necessarily have the judgment to go along with that.
So we know that, for example, the teen accident rate is very high compared to adults. They know all the rules just as well as the adults do. But they just don't exercise the judgment because that part of the brain hasn't developed very well yet.

          [26 Neb.App. 85] Dr. Peraino said that based on "longitudinal studies ... a small percentage of teenagers who commit crimes actually continue to do so in adulthood. So in that sense for the majority of teenagers, punishment should be secondary to treatment or rehabilitation." And if they are incarcerated instead, "they don't get the chance to experience the many aspects of the world that they can learn" and "[t]here are extreme limits to the aspects of life that can help them mature, grow, and psychologically develop."

         As to Leroux specifically, Dr. Peraino had done a psychological assessment of him over a 2-day period at the request of Leroux's counsel. That assessment included interviews with Leroux and his mother, both jointly and separately. In addition to conducting a juvenile risk assessment, Dr. Peraino also administered psychological tests, including tests related to intellect and academic skills, emotional intelligence, and personality assessments. In this type of evaluation, Dr. Peraino is looking for personality, maturity level, learning disabilities, intelligence level, how the teenager processes information, and whether recommendations of a psychological nature are needed.

         Leroux scored 86 on the "IQ tests overall," which "falls within the below average range." Leroux's "processing speed," or "how quickly one intakes information and outputs as a result," was "well below average, at the fifth percentile given his age." He also scored below average in verbal comprehension, while his perceptional reasoning and working memory were within the average range. Leroux scored "significantly higher on the academic testing, reading, word reading, sentence comprehension, spelling . . . even math calculation problems, computation was higher than what his IQ score would have indicated." According to Dr. Peraino, that "means that he learns well. That probably the IQ score was suppressed because of slow processing speed and somewhat verbal comprehension as well." Dr. Peraino stated Leroux's reading was at the 12th grade level, spelling was at the 11th grade level, and math was [26 Neb.App. 86] at the 7th grade level; he is "[c]ognitively intact," but "probably functioning a little below an average 16-year-old because of the lower IQ score, 14, 15, in that range."

         Dr. Peraino concluded Leroux has the capability to learn, but has some difficulty processing information quickly; Leroux is "somebody that needs time to kind of reflect and think about what's going on." Dr. Peraino described Leroux as "calm . . . [f]riendly, engaging," and he noted that Leroux "[k]ept calling me bro." Dr. Peraino was struck by Leroux's trauma exposure or negative events. "He has seen a video of his father being shot and killed, being in a car accident, being attacked by dogs, ... a couple of uncles committing suicide[.]" Leroux indicated to Dr. Peraino that the trauma has affected him; Dr. Peraino thought it caused Leroux to "maintain distance from people, to kind of disengage from the environment."

         Leroux was given a standard personality scale called the Millon Adolescent Clinical Inventory, as well as an "emotional IQ scale" and the "Rorschach" and "Thematic Apperception Test." Dr. Peraino testified that Leroux's overall emotional IQ "is average compared to teens his age," but that "[h]e was elevated on a scale called stress management." This showed that while Leroux perceives himself as being able to handle stress, "when it comes down to it, he has difficulty, more difficulty than the average 16- to 18-year-old male in actually coping with that stress." The emotional IQ tests also showed Leroux has some difficulty establishing relationships; he scored "a little low on his ability to make connections with other people and maintain them." In personality testing, Leroux scored high in categories of "[s]ubmissive, [d]ramatizing, [e]gotistic, and [c]onforming." He scored "pretty low - or average compared to other teens on unruliness and being oppositional." He scored "fairly low on being forceful, being dominating, being aggressive, that kind of thing." Leroux scored fairly low on substance abuse proneness, and Dr. Peraino saw no evidence of psychotic thinking in his assessment of Leroux. "So what you've got is a picture of an individual who goes with the [26 Neb.App. 87] flow, who is submissive, who is passive. He's kind of dependent, gives into other people usually. Coupled with sort of maybe elevated, overconfident sense of self'

         Dr. Peraino also discussed a violence risk assessment, which is an evidence-based test that contains a scale of 24 risk factors research has found to be predictive of whether a juvenile will reoffend. Leroux "scored relatively low on risk for reoffense. 15 of those 24 items or factors were in the low range." According to Dr. Peraino, these factors included:

Anger management problems, peer rejection, lack of personal social support, having attitudes of violence, growing up or living in a disorganized crime filled community, a history of violence, a history of self-harm, exposure to violence in the home, early initiation of violence, caretaker disruption in life or people that go to foster, poor parental management, ...

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