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Date: 01-22-2021
Case Style:
STATE OF NEBRASKA V. DILLEN C. GARCIA
Case Number: A-20-624.
Judge: Michael Pirtle
Court: IN THE NEBRASKA COURT OF APPEALS
Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Jordan Osborne
Defendant's Attorney:
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Description:
Lincoln, NE - Criminal defense attorney represented Dillen C. Garcia with appealing from an order of the district court for Hall County denying his motion to transfer his case from the district court to the juvenile court.
On April 20, 2020, the State filed an information in district court charging Garcia with first
degree assault on a peace officer, a Class ID felony, and obstructing a peace officer, a Class I
misdemeanor. Garcia subsequently filed a motion to transfer the case to juvenile court.
A hearing was held on the motion to transfer. Grand Island Police Officer Bradley Brooks
testified that on February 16, 2020, he responded to a call regarding gunshots fired and a
kidnapping. When he arrived at the reported location, Garcia’s mother was outside waving the
officers down, and she advised them she heard gunshots and saw a green vehicle take off with
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Garcia in the vehicle. While Brooks was speaking with Garcia’s mother, she received a phone call
from Garcia and Brooks spoke with Garcia on the phone. Garcia refused to provide his location to
Brooks. About 15 minutes later, Garcia arrived back home. Brooks spoke with Garcia about what
had happened and advised him that because he was currently on probation and he had contacts
with the police earlier the same day, Brooks was going to have his supervisor come to the scene to
decide what to do with Garcia. Brooks asked Garcia to sit in his patrol vehicle until his supervisor
arrived, and as they began walking to the vehicle, Garcia started running in an apparent attempt to
flee the scene. Brooks chased after him and tackled Garcia to the ground. Garcia refused to comply
with Brooks’ commands to put his hands behind his back and resisted being subdued. Garcia struck
Brooks twice in the head with his fist and then managed to free his leg and kicked Brooks in the
face, causing Brooks to fall backward. Garcia was able to get away and tried to flee again but
Brooks tackled him to the ground again. Garcia continued to be physically uncooperative until
another officer arrived and deployed his Taser. Garcia was then put in handcuffs and placed under
arrest.
Following the confrontation, Brooks experienced severe pain in his face and lower back.
He sought medical treatment and was diagnosed with a contusion to the left side of his face and a
back sprain. Brooks testified that he continues to suffer from back pain and has received multiple
epidural and lidocaine injections and that surgery is a possibility.
Garcia was 15 years’ old at the time of the incident and was 16 years’ old at the time of the
hearing on the motion to transfer.
Prior to the incident on February 16, 2020, Garcia had contact with law enforcement earlier
the same day as a result of being involved in stealing items from vehicles. Garcia’s juvenile court
history includes five previous adjudications for the following offenses: disturbing the
peace--fighting; theft by unlawful taking; theft by unlawful taking; third degree assault; and
disturbing the peace--fighting. He was placed on juvenile probation for each of the above offenses.
He also had seven pending matters in juvenile court at the time of the hearing, all filed between
December 3, 2019 and March 4, 2020. Copies of Garcia’s juvenile court records from his past
adjudications, as well as court files from the active cases, were entered into evidence.
As previously indicated, Garcia was on probation at the time of the offenses at issue.
Kimberly Hughes, a high risk juvenile probation officer, testified that she began supervising Garcia
in December 2019, but juvenile probation had been involved in supervising Garcia since July 2017.
She testified that Garcia has been provided services meant to rehabilitate a juvenile with violent
tendencies. The services included electronic monitoring, tracking, therapy, Aggression
Replacement Training (ART) and Moral Reconation Therapy (MRT). He had completed ART,
and participated in MRT, but did not complete it. Garcia has regularly tested positive for marijuana.
His therapy was terminated because he would not cooperate or communicate with the therapist.
Hughes testified that when Garcia is confronted or questioned about something, he gets
angry and leaves, which he had done at various meetings. She also testified that Garcia’s violence
is escalating from fighting peers at school to fighting a police officer, which she found concerning.
Hughes testified there are no other services juvenile probation can provide Garcia that
would deal with his violent tendencies. She said that juvenile probation is unable to effectively
supervise Garcia. It has exhausted all community-based efforts to keep him in the home. He had
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been noncompliant with juvenile probation and Hughes believed he would continue the same
pattern of noncompliant behavior. The next level of treatment for Garcia would be a residential
treatment facility or a group home. Hughes testified, however, that group homes tend to deny
placement of individuals with aggressive and/or violent behaviors. The only treatment facilities
are the Youth Rehabilitation Treatment Center and Hastings Regional Center. Hughes stated that
the Department of Corrections has some of the same programming available for violent juvenile
offenders as juvenile probation, such as ART, MRT, and schooling, but it also has some clinical
programs that juvenile probation does not have.
The State also presented evidence in the form of testimony from Hastings Police Officer
Cale Neelly and police reports of Garcia’s involvement in a shoplifting and stabbing incident that
occurred on August 23, 2019. Garcia objected to the admission of this evidence, which was
overruled. The evidence showed that during the evening on August 23, two juveniles shoplifted a
bottle of alcohol from a local grocery store and ran out of the store. Later, a grocery store employee
saw the two suspects, later identified as Garcia and Niko S., jumping a fence and going into a
neighbor’s backyard. The employee confronted the suspects who started running, and the
employee chased after them. The employee caught up to them and grabbed Garcia. Niko, who was
holding the bottle of alcohol in one hand, punched the employee with his other hand. Garcia then
pulled out a knife and asked the employee, “Do you want to get stabbed?” Niko then stabbed him.
The employee was certain Niko was the one who stabbed him and he described the knife as silver
and about 3 inches long.
The next day, on August 24, 2019, a vehicle was stopped by law enforcement and Garcia
was an occupant of the vehicle. He was found to be in possession of a silver knife. When
interviewed at the police department, Garcia told Neelly that he was present during the shoplifting,
but was not the one who stole the bottle of alcohol. Garcia also provided details about what
happened after the shoplifting. He told Neelly that he was present during the stabbing of the
grocery store employee, but was not the one who stabbed him. When asked about the knife found
on him during the traffic stop, Garcia stated that Niko asked him to hold onto a knife for him, but
he did not know if it was the weapon used in the stabbing.
The State also presented evidence of Garcia’s gang affiliation. There was testimony from
Grand Island Police Officer Wesley Tjaden that there were photos on social media of Garcia
wearing clothing associated with a certain gang, flashing a gang hand sign, and appearing in some
photos with other documented gang members. Tjaden testified that Garcia met six of the eight
criteria to be documented as a gang member, and the Grand Island Police Department has
documented him as a gang member. Garcia also admitted to Neelly that he was a gang member.
There was also evidence of Garcia’s unauthorized possession of firearms based on social
media messages, videos, and photographs downloaded from his phone.
Following the State’s evidence, Garcia presented testimony from three family friends who
knew Garcia before and after his father’s death. Each witness testified that they observed a change
in Garcia in the past few years, after his father committed suicide. Garcia was described as
outgoing before his father’s death, and angry and sad after his father’s death. Hughes also testified
that Garcia suffered trauma as a result of his father’s suicide and there could be mental disorders
stemming from his father’s death.
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Garcia also presented evidence from Dr. Kenneth DeFrank, who runs the Success
Academy, which offers a more one-on-one educational program with a self-paced online
curriculum for students who have not been successful in a traditional school environment. Garcia
was referred to Success Academy 6 weeks into his freshman year of high school. Based on testing
at the academy, his reading and math skills were only that of a third or fourth grader, indicating
some type of learning disability. DeFrank described Garcia as a flight risk, meaning Garcia would
leave the school without permission and they had to work to keep him in school.
Following the hearing, the district court entered an order denying Garcia’s motion to
transfer to juvenile court.
ASSIGNMENTS OF ERROR
Garcia assigns that the district court erred in allowing evidence of the stabbing incident in
Hastings, and denying his motion to transfer the case to juvenile court.
STANDARD OF REVIEW
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 unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
ANALYSIS
Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants concurrent jurisdiction to the juvenile
court and the county or district courts over juvenile offenders who are (1) 11 years of age or older
and commit a traffic offense that is not a felony or (2) 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, one of the allegations against Garcia,
first degree assault on a police officer, a Class ID felony, puts him within this category of juvenile
offenders.
When an alleged offense is one over which both the juvenile 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 Neb. Rev. Stat. § 29-1816(3)
(Cum. Supp. 2018).
In the instant case, when Garcia moved to transfer his case to juvenile court, the district
court conducted a hearing pursuant to § 29-1816(3)(a), which subsection requires consideration of
the following factors set forth in Neb. Rev. Stat. § 43-276(1) (Supp. 2019):
(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
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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 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.
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).
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. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018). In
conducting 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.” Id. at 276, 918 N.W.2d
at 18. The burden of proving a sound basis for retention lies with the State. Id.
Evidence of Stabbing Incident.
Garcia first assigns that the district court erred in allowing evidence of the stabbing that
occurred in Hastings on August 23, 2019. Garcia acknowledges that the rules of evidence are not
followed at a hearing on a motion to transfer, but argues that the evidence should not have been
admitted because it was not credible. He contends the evidence was not credible because no
charges were filed against him and the extent of his involvement was unclear based on the
witnesses. However, the evidence presented in regard to the stabbing incident included police
reports and the testimony of Neelly. This evidence indicated that even if Garcia was not the one
who stabbed the employee, he was present and involved in the incident. Such evidence was
credible, and not speculation and conjecture as Garcia contends, as it included Garcia’s own
admissions, as well as other corroborating evidence. In its order the district court acknowledged
that the evidence showed that although Garcia was implicated in the stabbing incident, he was not
the one who inflicted the stabbing, which is consistent with what Garcia told Neelly. Garcia’s first
assignment of error fails.
Denial of Motion to Transfer.
Garcia next assigns that the district court erred in denying his motion to transfer the case
to juvenile court. We disagree. The district court’s order is thorough and discusses each of the 15
factors in § 43-276(1). The court found the following factors favored retention in the district court:
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(b) the alleged offenses included violence; (e) Garcia’s previous history, including whether he had
been convicted of any previous offenses or adjudicated in juvenile court; (g) consideration of
public safety; (l) Garcia’s acknowledgment through social media of his unauthorized use or
possession of a firearm; (n) Garcia’s admission to being a member of a gang; and (o) other matters
deemed relevant to aid in the decision, including Garcia’s attitude, disregard for authority, and
refusal to participate in probationary services.
We agree with the factors found by the district court to weigh in favor of denying the
motion to transfer. Garcia does not dispute that the charges at issue included violence, although he
tries to minimize the violence that occurred as well as Brooks’ injuries, which he attributes to
preexisting medical conditions. The current offenses clearly included violence given that Garcia
punched Brooks twice in the head and kicked him in the face, causing injuries for which Brooks
is still treating. The district court also found that Garcia had escalated from assaulting peers to
assaulting a police officer. The court stated that Garcia was “beginning to establish a dangerous
and disturbing trend of violating the law in an increasingly violent manner. . . . This Court
determines this to be a highly serious and disturbing crime that was committed with total disregard
for Officer Brooks’ safety, health, and well-being.”
Garcia’s previous history includes a lengthy criminal history as a juvenile offender. Garcia
admits that he has a prior juvenile court record, with or without the stabbing incident. He has been
adjudicated five times in juvenile court. Garcia was on probation at the time these alleged offenses
were committed. The crimes that led to past adjudications included two charges of disturbing the
peace--fighting, third degree assault, and two charges of theft by unlawful taking. He was placed
on probation each time he was adjudicated.
There were also seven cases pending against Garcia at the time of the hearing filed between
December 3, 2019, and March 4, 2020. The charges in these cases include multiple charges of
criminal mischief, unauthorized application of graffiti, carrying a concealed weapon (knife),
multiple charges of theft by unlawful taking, and others. The scenarios that led to these charges
include Garcia cutting off his electronic ankle monitor causing damage to the device on two
occasions, spray painting explicit words on a vehicle, a traffic stop where Garcia concealed a knife,
vandalism of at least 70 vehicles with a BB gun, pointing a firearm (later determined to be a BB
gun) at another individual, and multiple thefts. The court stated that the pending cases against
Garcia showed an increase in severity of charges, an increase in the frequency of cases, and an
increase of charges per case.
Public safety was also a valid concern by the district court and one that weighs against
granting the motion to transfer. Garcia’s criminal path is escalating in seriousness and frequency.
The court noted his involvement in the stabbing incident. It found his gang affiliation to be of great
concern, as well as his use of illegal substances and the evidence suggesting he has access to
firearms. The court also found that Garcia has demonstrated that he is willing to selfishly and
violently harm anyone who may interrupt his plan of action. We agree with the court that the safety
of the public, as well as law enforcement, is a valid concern that favors retaining the case in district
court.
In regard to Garcia’s conviction of or acknowledged unauthorized use or possession of a
firearm, the court noted that Garcia has never been convicted of a firearm offense. However, it was
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concerned about Garcia’s fascination with firearms. One of the exhibits contained social media
messages, videos, and photographs downloaded from Garcia’s phone showing him in possession
of firearms. As the court noted, Garcia has not verbally acknowledged possessing firearms, but the
photographic evidence proves that Garcia has unlawfully possessed firearms. The court stated that
it was concerned that Garcia was attempting to create a persona involving the use of firearms.
The evidence also supports the court’s determination that Garcia is a gang member. Garcia
has admitted he is a member of a specific gang. Tjaden testified about Garcia’s gang related
contacts and actions. The Grand Island Police Department has determined that Garcia satisfied six
of the eight criteria documented used to classify an individual as a gang member, including
self-admission, and has documented him as a known criminal street gang member. Brooks and
Hughes also confirmed they were both aware Garcia was a documented gang member.
Finally, the court found that Garcia’s attitude and disregard for authority was relevant to
aid in its decision and weighed in favor of denying the motion to transfer. Garcia has been offered
numerous services to help him make positive changes in his life, but no changes have occurred.
He has repeatedly failed to participate in or has voluntarily left programs designed to help him
succeed. He is uncooperative with his probation officer and has failed to comply with the terms
and conditions of his probation, including cutting off his ankle monitor on more than one occasion.
Garcia’s therapist discontinued meeting with Garcia because he was uncooperative.
Garcia suggests that the court failed to consider his level of intelligence, his “fleeing”
attitude, and the trauma of his father’s suicide. However, in its order, the district court did take
these issues into account in considering the motion to transfer. The court found that the evidence
did not reflect that Garcia did not understand why he was before the court or that he did not
understand right from wrong. It concluded that Garcia had the ability to appreciate the nature and
seriousness of his conduct. The court also considered that Garcia may still be processing the death
of his father, and that his age and emotional maturity may magnify Garcia’s emotional reaction. It
also noted that he had not received counseling to address the trauma of his father’s death and took
note of his “severe emotional trauma.”
The district court also discussed Garcia’s “fleeing” attitude when discussing his motivation
to commit the offense. It stated that the characterization of Garcia as a member of the “flight”
category was a plausible explanation of the previous failed attempts to rehabilitate Garcia, but did
not constitute a justification for his conduct in physically assaulting Brooks. Contrary to Garcia’s
suggestion, the court’s order shows that it considered each of the facts Garcia alleged the court
failed to consider when balancing the statutory factors.
We conclude that the district court adequately considered all the factors set forth in
§ 43-276(1) and that the evidence supports the district court’s denial of Garcia’s motion to transfer.
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. State v. Blimling, 25 Neb. App. 693, 911 N.W.2d 287 (2018).
Upon our review of the record, we cannot say that the district court abused its discretion in
denying Garcia’s motion to transfer to juvenile court and in finding a sound basis to retain
jurisdiction in district court. The court was tasked with balancing public safety and security against
the rehabilitative needs of Garcia. This balance requires a thoughtful consideration of the relevant
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statutory factors. The district court conducted and set out its thoughtful analysis, ultimately
concluding that the case should be retained in the district court.
Outcome: For the reasons stated in this opinion, we conclude that the district court did not abuse its discretion in denying Garcia’s motion to transfer the case to juvenile court.
AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: