Summary:
Aaden S. was charged in the county court for Buffalo County, sitting as a juvenile court, with several felonies and a misdemeanor related to the alleged assault and sexual assault of J.Z., his then-girlfriend. Following a motion by the State, the court transferred the matter to the adult docket of the county court. Aaden appeals the transfer and assigns several errors related to the procedure utilized during his transfer hearing. For the reasons that follow, the Nebraska Court of Appeals affirms.
Background:
Aaden was 16 years old on September 18, 2024, when he was charged by a juvenile petition with (1) first degree sexual assault, a Class II felony; (2) terroristic threats, a Class IIIA felony; (3) assault by strangulation or suffocation, a Class IIIA felony; and (4) third degree domestic assault, a Class I misdemeanor. These charges stem from two incidents that occurred in August 2024. Both incidents involved interactions between Aaden and J.Z., who was 18 years old at the time. On September 4, J.Z. took part in a Family Advocacy Network (FAN) interview. During the interview, she reported the following events.
On August 17, 2024, she and Aaden were at a friend’s house drinking alcohol when he got upset with her. Aaden pushed her against a wall by her neck and spit in her face. Aaden got more upset after J.Z. told him that she should drive because he had consumed four shots of whiskey. After arguing further, he hit her in the back of the head three times. When they were almost to Aaden’s house, Aaden asked J.Z. “why she was a whore,” and hit her several more times in the head and once across the face. Once they got to Aaden’s house, J.Z. told him she was going home, but he told her that she was staying. Aaden then forced her out of the car by her neck, which impacted her ability to breathe. Once she was able to get free, she tried running away, but Aaden pulled her hair and punched her in the face. J.Z. tried getting away again, but Aaden caught her, punched her in the face, dragged her by her hair, and told her to get inside. J.Z. stated that she tried running away around six or seven more times, with similar results. During one of these attempts, J.Z. got away and thought she saw a police officer, but Aaden tackled her and threatened to kill her if she got back up. To keep her quiet, Aaden grabbed the area of her bicep that he knew contained her birth control device and would cause her pain if he grabbed it harshly.
They then went to a park where Aaden punched J.Z. in the face again. J.Z. started screaming because she thought he broke her nose, so Aaden hit her in the face another time and covered her mouth with his hand. Aaden then started crying and said he did not want to be like his father and apologized. They walked back to Aaden’s house, and J.Z. once again tried to run away but Aaden tackled her. J.Z. believed this made her lose consciousness. When she awoke, Aaden told her she could leave but would not return her keys or phone. He also told her it was going to be a “long walk home.” Aaden then told her to get inside his house.
Aaden then told J.Z. to get into his bed, but she told him that she was going to sleep alone. Aaden then forced her onto his bed and took off her clothes. He tried to have sex with her, but she told him that she did not want to. After Aaden started kissing her, she told him again that she did not want to have sex. Despite this, he penetrated her vagina with his fingers. Because she wanted him “to stop,” J.Z. agreed to have sex. The next day, Aaden would not return J.Z.’s keys or let her leave his house despite her requests. He eventually allowed her to leave around 3 p.m.
The next incident occurred 8 days later on August 25, 2024, when J.Z. and Aaden were at Aaden’s house. Aaden had been drinking alcohol when he asked J.Z. to take her clothes off and lay next to him, which she did. They soon began fighting, and Aaden asked her if she wanted to have sex. She said no, but Aaden pulled his penis out and asked for oral sex. J.Z. refused. Aaden then told her that she had to either perform oral sex on him or have sex with him. After more arguing and refusals by J.Z., she started to perform oral sex on him but soon stopped because she was tired. He then asked her to have sex again, which she refused. Despite this refusal, he positioned her on her stomach and penetrated her vagina with his penis. J.Z. repeatedly told him to stop and moved into positions where he could not penetrate her. However, Aaden moved her back into a different position each time. This occurred around five times. At some point, J.Z. started to cry, but Aaden continued anyway. And although he asked her multiple times if she was all right, and she told him no each time, he continued to have sex with her.
Afterward, J.Z. tried to put her clothes on, but Aaden did not let her. When she attempted to put on her underwear, he tried to rip it off. This led to a physical fight where Aaden tried to choke J.Z. Because of this, she started screaming and Aaden covered her mouth with his hand. Aaden’s father heard the noise and asked what was going on. It was only at this point that Aaden let J.Z. leave. But as J.Z. left the house, Aaden pushed her, followed her to her car, and once she was in the car, spat in her face.
On September 18, 2024, the State motioned to transfer Aaden’s case to the adult county court. A hearing was held on November 14. At the hearing, the State offered exhibits 4 through 19 without calling any witnesses. These exhibits included photographs of J.Z.’s injuries, text messages between J.Z. and Aaden, the video recording of J.Z.’s FAN interview, and the police reports that outlined J.Z.’s allegations. Aaden’s attorney objected to this evidence, arguing that it was offered without any attempt to authenticate it. He also asserted that because it was not being offered through witness testimony, it violated Aaden’s rights of confrontation and due process. The court overruled these objections and received the exhibits into evidence. Notably, the State did not call any witnesses throughout the proceeding.
Aaden then called his juvenile probation officer, Tyler Mertens, as a witness. He stated that he became involved with Aaden when he was 16 years old because of Aaden’s current charges. He explained that Aaden was originally sent to a detention center for juveniles but was discharged after 3 weeks with no negative reports. This indicated to Mertens that Aaden was able to follow the rules, cooperate with staff, and did not have problems with peers. He also stated that Aaden was attending out-patient counseling, regularly attending school, and participating in weekly drug tests. Although his first drug test was positive for “THC,” his subsequent tests were all negative. Mertens then discussed how this was Aaden’s first time in juvenile court and how he did not have a criminal history outside of some traffic infractions. He also stated that Aaden was complying with the no-contact order with J.Z. and was employed. Given Aaden’s lack of criminal history and his participation in relevant services, as well as the fact he was being electronically monitored, Mertens believed that Aaden could succeed on probation.
On December 10, 2024, the juvenile court issued an order granting the State’s motion to transfer. The court generally found the case should be transferred to adult court because the crimes involved substantial violence for the purposes of sexual gratification and Aaden would have less than 2 years under the juvenile court’s jurisdiction for rehabilitation. The court further found that Aaden posed a risk to public safety, attempted to manipulate J.Z. from contacting the police, had tried to contact J.Z. after the charges were filed, and engaged in adult activities such as drinking alcohol. Aaden appealed.
Assignments of Error:
Aaden assigns that (1) the juvenile court abused its discretion by granting the State’s motion to transfer, (2) the juvenile court violated his rights to due process by receiving the State’s evidence over his objections, (3) the transfer hearing was conducted in a manner that violated his rights to confrontation and due process, (4) his rights to confrontation and due process were violated by the rules of evidence not applying at the transfer hearing, (5) the State failed to show by a preponderance of the evidence that his case should be transferred to the county court, (6) the juvenile court violated his rights to confrontation and due process by receiving evidence without requiring the State to call any witnesses, and (7) the juvenile court erred in failing to properly consider his best interests before transferring his case to county court.
Analysis:
The Nebraska Court of Appeals first notes that since Aaden filed his appeal and oral argument was had in this matter, the Nebraska Supreme Court issued an opinion in State v. Jeremiah T. That case involved a juvenile’s motion to transfer his case from adult court to juvenile court. After the district court denied the motion, the juvenile appealed and the Court of Appeals reversed the district court’s decision. On further review, the Supreme Court reversed the Court of Appeals decision and remanded the cause with directions to affirm the district court’s denial of the motion to transfer.
In its opinion, the Supreme Court clarified the appropriate standard of review for motions to transfer. It stated:
Abuse of discretion is a highly deferential standard of review. It is the standard applicable to reviewing a criminal sentence, where we have explained that “[i]t is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate” and that “[t]he standard is not what sentence we would have imposed.” Likewise, in reviewing a trial court’s ruling on a transfer motion, an appellate court’s function is not to review the record de novo to determine whether we think the case should be transferred. Here, the Court of Appeals articulated reasons why it would have transferred the matter to juvenile court. But an appellate court’s review is limited to determining whether the trial court’s reasons and rulings are clearly untenable. To be “untenable” is to be “incapable of being defended.”
Rights to Confrontation and Due Process
Aaden assigns that the juvenile court violated his rights to confrontation and due process by receiving evidence without requiring the State to call any witnesses. The Court of Appeals first notes that because this was a juvenile proceeding, which is civil in nature, and not a criminal case, the heightened standards of the Confrontation Clause are not applicable. The U.S. Supreme Court has explained that “the right to confrontation is basically a trial right.” A juvenile transfer hearing is not a trial as it does not find as a fact that the accused minor is guilty of the offense charged. Instead, the purpose of the hearing is to determine whether a preponderance of the evidence supports transferring the proceeding to the county court or district court. In other words, it is more akin to a hearing on a motion to change venue. The hearing must be held within 15 days of the motion being filed and “[t]he customary rules of evidence shall not be followed at such hearing.” Because the Confrontation Clause is largely inapplicable in juvenile court proceedings, the Supreme Court has stated that in such cases the proper analysis is whether the juvenile’s due process rights were violated.
The U.S. and Nebraska Constitutions provide that no person shall be deprived of life, liberty, or property without due process of law. Due process does not guarantee an individual any particular form of state procedure. It is flexible and calls for such procedural protections as the particular situation demands. While the concept of due process defies precise definition, it embodies and requires fundamental fairnes and its clear central meaning is that parties whose rights are to be affected are entitled to be heard. Broadly speaking, due process requires that parties at risk of the deprivation of liberty interests be provided adequate notice and an opportunity to be heard.
The U.S. Supreme Court has previously addressed the due process requirements for transferring juvenile proceedings to adult court. In Kent v. United States, the juvenile court of the District of Columbia waived jurisdiction over a juvenile to the U.S. District Court for the District of Columbia. In making this decision, the juvenile court did not hold any hearings and did not confer with the juvenile, the juvenile’s parents, or the juvenile’s counsel. Nor did the court make any findings or provide any reason for the waiver of jurisdiction. The U.S. Supreme Court articulated that while the District of Columbia’s Juvenile Court Act provided the juvenile court with considerable latitude to determine whether it should retain jurisdiction over a child, the statute “assumed procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness.”
The U.S. Supreme Court then highlighted 3 essential elements that juvenile transfer proceedings must include to satisfy due process. First, a hearing must be held. While this hearing may be informal and need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, it must measure up to the essentials of due process and fair treatment. A critical component to that fair treatment is the requirement that the juvenile be represented by counsel at the hearing. The Court articulated that this right to representation is not a mere formality. Instead, the juvenile’s counsel must be “given an opportunity to function.” Lastly, the juvenile court must issue a decision in which it states its reasoning for the transfer. This decision does not need to be formal or necessarily include conventional findings of fact, but it must contain sufficient specificity to permit meaningful review.
The approach utilized by the State may not be the best practice in terms of creating a clear and complete record for both the trial court and an appellate court on review, Aaden’s right to due process was not violated by the State’s decision to introduce its evidence without calling any witnesses. Despite the approach utilized by the State, the transfer hearing still met all of the requirements set forth in Kent v. United States, to satisfy Aaden’s right to due process. The juvenile court conducted a hearing, Aaden was represented by counsel at that hearing, and the juvenile court issued a reasoned opinion in which it explained in sufficient detail its decision for transferring Aaden’s case to adult court. The dissent points out that counsel for Aaden had no ability to cross-examine the State’s witnesses, thus impeding counsel’s ability to function. However, the Court notes that counsel was not prevented from calling any individual named in the police reports or portrayed in the photographs or video received by the court. While the burden is on the State, the forum of a transfer hearing is not a trial and the rules of evidence do not apply. Thus, if the State wishes to run the risk of not meeting its burden of proof by failing to call witnesses, the defense is not left without recourse. It has the ability to call the necessary witnesses it needs to contest the evidence adduced by the State. Here, Aaden chose not to contest the State’s evidence in that manner. Accordingly, Aaden’s right to due process was not violated.
Transfer to County Court
Aaden next assigns that the juvenile court abused its discretion in determining that his case should be transferred to the adult docket of the county court. §43-246.01(3) grants concurrent 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 first degree sexual assault allegation, which is a Class II felony, put Aaden 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, the county attorney may move to transfer the matter from juvenile court to county or district court. When the prosecution seeks to transfer a juvenile offender’s case to criminal court, the juvenile court must retain the matter unless a preponderance of the evidence shows that the proceeding should be transferred to the county court or district court. The prosecution has the burden by a preponderance of the evidence to show why such proceeding should be transferred.
§43-276(1) sets forth 15 factors for a juvenile court to consider in making the determination of whether to transfer a case to county court or district court. These factors include: (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 or juvenile agree to participate in restorative justice; (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 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. Rather, it is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile.
(a) Factors Weighing in Favor of Transfer
Of the 15 statutory factors, most weigh in favor of transfer. First, and most notably, Aaden’s crimes involved exceptional and repeated violence. Throughout both incidents, it is alleged that he grabbed J.Z. by the neck to the point where she could not breathe, hit her on the back of the head multiple times, slapped her, spat in her face at least twice, and punched her in the face repeatedly. When she attempted to escape numerous times, Aaden recurrently tackled her and dragged her back by her hair. On one of those occasions, she lost consciousness after being tackled. More so, Aaden threatened to crash his car when J.Z. did not listen to him and later threatened to kill her if she tried to get a police officer’s attention.
Aaden’s actions also involved repeated sexual abuse. Although J.Z. repeatedly told him that she did not want to have sex, he digitally penetrated her, forced her to perform oral sex on him under threat of being vaginally penetrated, and later vaginally penetrated her with his penis multiple times. While he had sex with J.Z. against her wishes, she repeatedly asked him to stop, attempted to put herself in positions where he could not penetrate her, and told him that she was not all right. However, despite these requests and her crying, each time Aaden repositioned her and continued the penetration. And once the sexual abuse ended and J.Z. tried to get dressed, Aaden attempted to rip off her underwear and choked her. Given this overwhelming display of violence, this factor weighs heavily in favor of transfer.
Aaden’s actions were clearly motivated by a desire for sexual gratification and control. Because he was willing to use extraordinary violence to achieve this, he poses a clear risk to the public. Therefore, the factors relating to his motivation and whether he poses a public safety risk also weigh heavily in favor of transferring his case.
Aaden was 16 years 10 months old when these events occurred. By the time the juvenile court issued its order, Aaden was 17 years 2 months old. At his age, Aaden should have understood the seriousness of his repeated physical and sexual abuse. He also demonstrated an ability to appreciate the wrongfulness of his actions when he took a moment to apologize to J.Z. and told her that he did not want to be like his father. But despite this moment of clarity, he soon continued beating, threatening, and abusing her. He also demonstrated a recognition of the seriousness of his actions and an understanding of the possible legal ramifications when he berated J.Z. over text messages for cooperating with law enforcement. Accordingly, the factors involving Aaden’s age and his ability to appreciate the seriousness of his conduct also weigh heavily in favor of transfer.
Given the repeated, violent, and impulsive nature of Aaden’s actions, the Court lacks confidence he will be able to rehabilitate himself in the less than 2 years remaining before he reaches the age of majority. As such, the factor pertaining to whether the security of the public may require Aaden to continue in secure detention or under supervision for a period extending beyond his minority also weighs in favor of transferring his case.
Aaden is currently prohibited from contacting J.Z., and she has refused his contacts. Because of this, the factor relating to whether the victim or juvenile agreed to participate in restorative justice also weighs in favor of transfer. Lastly, as articulated by the juvenile court, Aaden considers himself to be an adult and capable of making adult decisions. An example of this was his consumption of alcohol during both incidents. With this evidence, the factor that allows for the consideration of other matters as deemed relevant by the parties also weighs in favor of transfer.
(b) Factors Weighing in Favor of Retention
Several factors weigh against transfer. Aaden’s best interests would likely be served by remaining in juvenile court and thereby avoiding several possible felony convictions. He has also proven amenable to treatment while under jurisdiction of the juvenile court. His probation officer testified that he was attending outpatient therapy, going to school, passing his drug tests, and abiding by court orders. Further, except for the current charges and some minor traffic infractions, Aaden does not have a prior criminal history.
There were also some factors for which there was no evidence presented. In State v. Aldana Cardenas, the Supreme Court found that because it is the State’s burden to prove that a sound basis exists for retaining a case in the district court, any factor found not to favor retention should be considered a factor that favors transfer to the juvenile court. There was no evidence that a firearm was involved, nor that Aaden was a member of a criminal street gang. There was also no evidence presented as to whether there was a juvenile pretrial diversion program that Aaden qualified for, nor any evidence as to whether a juvenile court order had been issued for him under §43-2,106.03. Because no factor can be considered neutral or inapplicable, these factors weigh against transfer.
(c) Resolution
The juvenile court did not abuse its discretion in transferring Aaden’s case to county court. While not determinative, a majority of the factors weigh in favor of transfer. There is no arithmetical computation or formula required in a court’s consideration of the statutory criteria or factors. There are no weighted factors, that is, no prescribed method by which more or less weight is assigned to each factor specified by statute. But even if a majority of the factors did not weigh in favor of transfer, the relevant factors—including the violence involved in the crimes, Aaden’s motivation, his age at the time of the offense, the risk he poses to public safety, the unlikelihood of full rehabilitation within 2 years, and his ability to appreciate the nature and seriousness of his conduct—collectively weigh heavily enough in favor of transfer to support the juvenile court’s decision. As demonstrated by his actions, Aaden will continue to pose a significant risk to public safety beyond his minority and will require extended supervision to mitigate that risk. Therefore, the juvenile court’s decision to transfer Aaden’s case to county court was not untenable or unreasonable.
The dissent asserts the juvenile court was unable to conduct the required balancing test—by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile—because the State failed to present any evidence regarding Aaden’s ability to be timely rehabilitated through the juvenile system. But there was substantial evidence that implicitly went toward Aaden’s inability to be rehabilitated in under 2 years. At the transfer hearing, the State offered J.Z.’s forensic interview, police reports, and photographs to show that Aaden used extreme violence against J.Z. multiple times, later attempted to convince her to not cooperate with law enforcement, and demonstrated an understanding at the time of the events that his actions were wrong. This evidence, the authenticity of which was not disputed by Aaden or his attorney, in conjunction with the little time Aaden had before aging out of the juvenile court’s jurisdiction, was sufficient for the court to conduct the requisite balancing test.
Although Mertens testified Aaden could be rehabilitated within 2 years, the court was not obligated to accept his opinion. In Jeremiah T., the Supreme Court held that the district court could reject the testimony of a forensic psychologist who testified to the defendant’s amenability to treatment. Here, the court explicitly considered and rejected the probation officer’s opinion, noting that the probation officer had been provided limited information regarding the case at that point in time. In the sentencing scenario, the Supreme Court has long held that a sentencing judge is not bound by the recommendations of a probation officer in determining a sentence to be imposed. The Court of Appeals found no error in the court’s decision to reject Mertens’ testimony.
Conclusion:
The juvenile court did not violate Aaden’s rights to confrontation and due process by allowing the State to introduce evidence without calling any witnesses. The court did not abuse its discretion in transferring his case from juvenile court to county court. Affirmed.
Chief Judge Riedmann dissenting:
The majority concludes that (1) a juvenile’s due process rights are not violated when the juvenile’s case is transferred to adult court upon mere presentation of unidentified documents and (2) the State meets its burden of proving by a preponderance of the evidence that the proceeding should be transferred to the county court without any evidence that the juvenile is not amenable to services in the juvenile court. Given the stakes involved in transferring this juvenile’s case to adult court where he faces potential convictions of a Class II felony and two Class IIIA felonies, carrying decades of possible imprisonment, due process and our juvenile justice system require more. Accordingly, I dissent.