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STATE v. MORENO

Cite as 28 Neb. App. 581

State of Nebraska, appellee, v. 

Anthony Moreno, appellant.

___ N.W.2d ___

Filed June 30, 2020. No. A-20-067.

1. Pleadings: Judgments: Appeal and Error. A trial court’s decision to 

reopen a case to receive additional evidence is reviewed for an abuse 

of discretion.

2. 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.

3. Trial: Evidence: Appeal and Error. Among factors traditionally considered in determining whether to allow a party to reopen a case to 

introduce additional evidence are (1) the reason for the failure to introduce the evidence, i.e., counsel’s inadvertence, a party’s calculated risk 

or tactic, or the court’s mistake; (2) the admissibility and materiality of 

the new evidence to the proponent’s case; (3) the diligence exercised 

by the requesting party in producing the evidence before his or her case 

closed; (4) the time or stage of the proceedings at which the motion 

is made; and (5) whether the new evidence would unfairly surprise or 

unfairly prejudice the opponent.

4. Courts: Juvenile Courts: Jurisdiction. The determination of whether 

a district court or a juvenile court should exercise jurisdiction over a 

juvenile involves consideration of the juvenile’s best interests and the 

public’s safety.

5. Criminal Law: Courts: Juvenile Courts: Jurisdiction. 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 to juvenile court pursuant to Neb. Rev. Stat. § 29-1816(3) (Cum. 

Supp. 2018).

6. Criminal Law: Courts: Juvenile Courts: Pleadings. 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/07/2020 09:07 AM CDT
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protection and societal security are weighed against the practical and 

nonproblematical rehabilitation of the juvenile.

7. Criminal Law: Courts: Proof. The burden of proving a sound basis 

for retention of a pending criminal case in the district court lies with 

the State.

8. Criminal Law: Courts: Juvenile Courts. Age alone does not support a 

transfer of a criminal proceeding to juvenile court.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed.

Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Pirtle, Riedmann, and Bishop, Judges.

Riedmann, Judge.

I. INTRODUCTION

Anthony Moreno appeals from the order of the district court 

for Lancaster County denying his motion to transfer his case 

from the district court to the juvenile court. Finding no abuse 

of discretion in the district court’s order or in its procedure, 

we affirm.

II. BACKGROUND

Moreno was 15 years old on the night he and three friends 

(ages 14, 14, and 16) decided to steal a vehicle in December 

2018 in Lincoln, Nebraska. They located an unoccupied vehicle with a running engine at about 4 a.m., and Moreno drove 

the vehicle to a location near the house of one of the other 

friends. They then drove around, making various stops, and 

successfully evaded law enforcement for the first time at 

about 7 a.m. At approximately 8:05 a.m., another law enforcement officer observed the stolen vehicle and followed it in an 

unmarked patrol car while dispatch made arrangements for 

other officers to respond to the location. Once law enforcement attempted to stop the stolen vehicle, Moreno accelerated, 
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began swerving, and ultimately went into a ditch and rolled; 

its passengers were ejected. One passenger age 14, Zayne 

Yost, was killed. Moreno initially denied driving, claiming 

that Yost had been the driver and that he did not know the 

vehicle was stolen; later, he admitted that he was operating 

the vehicle. A grand jury indicted Moreno for manslaughter, 

finding that he killed Yost “unintentionally while in the commission of an unlawful act, to wit: Operate a Motor Vehicle to 

Avoid Arrest.”

Moreno filed a motion to transfer his case to the separate 

juvenile court of Lancaster County. Hearing was held on 

August 7, 2019, at which time testimony was offered by Dr. 

Stephanie Bruhn, a psychologist hired to perform a forensic evaluation of Moreno. She testified that based upon her 

testing of Moreno, her interview with him, and her review 

of various materials, it would be in Moreno’s best interests 

to undergo “intensive trauma-informed treatment,” individual 

therapy, family therapy, aggression replacement training, and 

substance abuse treatment. She recommended a psychiatric 

residential treatment facility (PRTF), such as Boys Town, followed by probation or some other type of monitoring through 

urine analysis to confirm that he has not relapsed. She opined 

that all of the treatment she recommended was available in the 

community and is available at the Youth Rehabilitation and 

Treatment Center (YRTC) in Kearney, Nebraska; Boys Town; 

and the Nebraska Correctional Youth Facility (NCYF). She 

explained that the NCYF’s population is comprised of individuals up to age 19 and that when residents turn 19 years old, 

they are transferred to an adult facility.

Bruhn revealed that Moreno had been associated with a 

gang for about 6 months prior to this incident, but was now 

working on removing himself from that gang. She further testified that she performed a risk assessment that had previously 

been conducted in March 2019 when Moreno was at the juvenile detention facility in Lincoln. The purpose of the assessment is to determine a person’s risk factors for engaging in 
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general violence in the future. At the earlier date, Moreno 

was placed in the high-risk category for general violence. 

However, he was retested by Bruhn in July 2019, after having received some treatment at the PRTF, and scored in the 

moderate category for general violence. Bruhn interpreted that 

to mean that he was amenable to treatment and that he had 

made progress.

Bruhn explained that putting a 16-year-old offender 

(Moreno’s age at the time of the hearing) into a facility with 

much older offenders can be harmful to the younger person 

because older people have more antisocial behaviors and attitudes that can impact the younger inmate. It was her opinion that the most intense appropriate therapy would be out 

in the community. She acknowledged on cross-examination 

that Moreno has been given juvenile intervention since July 

2015 and has been afforded intensive family preservation and 

multisystemic treatment, which were not successful. She also 

acknowledged that after this incident but prior to being placed 

at the PRTF, Moreno had additional contact with law enforcement for making social media threats of bringing a gun to 

school. She conceded that his cooperation did not start until 

he was indicted on manslaughter charges and that he now 

has external motivation to comply. She further admitted that 

Moreno’s compliance with probation and treatment did not 

begin until April 2019, despite his involvement in the juvenile justice system since July 2015, and that he has amassed 

charges of terroristic threats, burglary, and assault, as well as 

the current charge of manslaughter. She conceded that at the 

time of the hearing, Moreno had been compliant for only about 

4 months.

Amy Hernbloom, Moreno’s mental health therapist from 

the PRTF, also testified. She stated that Moreno first came to 

the PRTF in April 2019 and remained there 10 to 12 days. He 

was initially placed through the juvenile court system prior 

to the current charges being filed and was removed when the 

present case was filed. He was later returned to the PRTF. 
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According to Hernbloom, Moreno has done very well at the 

PRTF, actively engaging in therapy. She confirmed that the 

treatment modalities recommended by Bruhn are available at 

Boys Town.

Moreno’s probation officer, Courtney Goldenstein, began 

working with him in December 2018 as the “conditional 

release officer.” She testified that Moreno began on conditional release in November 2018 and continues to be on conditional release. He has been detained since March 2019 for 

having posted “Snapchat” videos in which he made terroristic 

threats. A Lancaster County juvenile court judge ordered the 

PRTF based on evaluations of Moreno at the time. He was 

admitted to the PRTF at Boys Town on April 22, 2019; he was 

arrested there about 10 to 12 days later for the current charges. 

However, based upon his positive behaviors, Boys Town was 

willing to readmit him. According to Goldenstein, Moreno’s 

current placement has the ability to access all the needs identified by Moreno’s psychiatrist.

Goldenstein admitted that she was familiar with a juvenile 

case in Thayer County involving Moreno that was closed in 

August 2018 and a Lancaster County juvenile court case that 

was opened in September 2018. Contrary to Bruhn’s testimony, 

Goldenstein opined that Moreno’s intensive family preservation treatment in Thayer County was successful, but she admitted his multisystemic treatment in Lancaster County was not. 

Moreno has been placed out of home in a kinship foster home, 

foster home, group home, and shelter. He did not begin to do 

well until he was placed at the detention center and then at the 

PRTF. Goldenstein admitted that to her knowledge, there have 

never been any manslaughter cases in juvenile court; however, 

she was also unaware of any 15- or 16-year-old juvenile who 

has been charged with manslaughter in Lancaster County.

Finally, Goldenstein explained that Moreno has completed 

the program at the PRTF and is set to move to a lower level 

of care at Boys Town unless there is a new law violation or he 

is noncompliant with probation or has a mental health need. 
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Therefore, if Moreno were adjudicated on the manslaughter 

charge, he would be placed in a group home at Boys Town, 

which has an average placement of 12 months. He would then 

step down to the family home setting at Boys Town.

The State called no witnesses but offered 14 exhibits, 

including a cruiser video depicting the events of December 

26, 2018, corresponding reports from law enforcement, forensic evidence from the accident, and pleadings from Moreno’s 

juvenile court cases in Lancaster and Thayer Counties. The 

juvenile court records reveal that Moreno was placed on 

probation in October 2015 in Thayer County for assault causing bodily injury and criminal mischief of $200 to $500. 

Additional charges were brought against him in April 2016 

for receiving stolen property valued at $500 or less, and he 

was placed on supervised probation for 12 months. In May, he 

was removed from his family home on allegations of physical 

abuse, neglect, and drug use by a parent and was adjudicated 

as a ward of the State in August. In February 2017, he was 

charged with terroristic threats and admitted to the allegations. 

He was placed on probation for 18 months. As a result of the 

additional charges, his previous orders of probation were terminated. Moreno satisfactorily completed the 18-month term 

of probation for the terroristic threats and was discharged in 

August 2018.

A month after Moreno was discharged from probation in 

Thayer County, he was adjudicated in the separate juvenile 

court of Lancaster County for third degree assault. A supplemental petition was filed charging him with false reporting, to 

which he admitted in November 2018, and he was placed in a 

graduated sanctions program. He was unsuccessfully discharged 

for failure to cooperate, and on March 19, 2019, an order for 

immediate custody was issued. He was ordered detained at 

the juvenile detention center. On March 25, a second supplemental petition was filed charging Moreno with disturbing the 

peace, and he admitted to that allegation in April. The court 

found that Moreno should be conditionally released from the 
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juvenile detention center and placed at the PRTF at Boys 

Town. He remained there until he was arrested on the current 

charge, but was returned on April 15. He remained there at the 

time of the hearing on his motion to transfer.

On September 13, 2019, the State moved to reopen the evidence “to offer evidence of a material change in circumstances 

after the evidence was submitted.” The court addressed the 

motion at a hearing on September 24. Moreno objected, stating 

that the court did not have the authority to reopen the proceedings because of the expedited procedures set forth in Neb. Rev. 

Stat. § 29-1816 (Cum. Supp. 2018), the expedited nature of 

filing an appeal once the transfer order is made, and the appellate courts’ procedure for addressing juvenile transfer appeals. 

The court granted the motion, and new evidence was offered 

that day.

The State called Ryan Dvorak, the preadjudication coordinator specialist for Lancaster County Human Services. Dvorak 

testified that his department supervised Moreno’s electronic 

monitoring ordered as part of his bond so he could return to the 

PRTF. Dvorak stated that he received a letter from Hernbloom 

on August 23, 2019, indicating that Moreno was being discharged from the PRTF. According to the letter, Moreno “demonstrated difficulty with accepting decisions from adult authority . . . by ignoring staff, cursing, engaging in aggressive 

behaviors and making negative self-statements.” He ultimately 

bit a staff member. As a result of Hernbloom’s letter, Dvorak 

notified the court that Moreno was having problems at the 

PRTF and had committed a violation by removing his electronic monitor bracelet.

Dvorak was later notified that the court issued an order 

revoking Moreno’s bond and issuing a bench warrant for his 

arrest. He was transferred to the Lancaster County detention 

facility for youth and remained there following the issuance of 

the warrant. At Moreno’s request and without objection from 

the State, the court agreed to keep the record open for Moreno 

to submit an additional exhibit, a letter from Hernbloom, 
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which was subsequently written and submitted on October 1, 

2019. In her letter, Hernbloom described in more detail the 

events originally outlined in her August 23 letter.

The court issued its order on January 24, 2020, denying the 

motion to transfer. It set forth the elements it was required 

to consider under Neb. Rev. Stat. § 43-276 (Supp. 2019) and 

identified evidence as to each element. As to the first factor, 

it found that Moreno would likely be best amenable to treatment under the jurisdiction of the district court. As to many of 

the other factors, however, the court did not identify whether 

the factor weighed in favor of retaining jurisdiction. The court 

stated that Moreno faces a Class IV felony, with a potential 

maximum sentence of 2 years’ incarceration and a maximum 

of 12 months’ postrelease supervision. It stated, “In no event 

can his incarceration continue past his age of majority since 

he is presently only 16 years of age . . . . By contrast, adult 

probation could continue for five years, supervising him until 

he is 21 years of age.” The court found that Moreno remains a 

risk to the public and that the recommendations of discharging 

Moreno to a community setting and then to home would not 

serve the security of the public.

Moreno timely appealed the denial of his motion to transfer.

III. ASSIGNMENTS OF ERROR

Moreno assigns, restated and renumbered, that the district 

court abused its discretion by reopening the case to receive 

additional evidence and in finding that the State established a 

sound basis for retention of the case in district court. He also 

assigns that the court created an excessive delay in rendering 

its order.

IV. STANDARD OF REVIEW

[1] A trial court’s decision to reopen a case to receive additional evidence is reviewed for an abuse of discretion. See 

State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

[2] A trial court’s denial of a motion to transfer a pending 

criminal proceeding to the juvenile court is reviewed for an 
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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 unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. Id.

V. ANALYSIS

1. Reopening Case to Receive 

Additional Evidence

The initial hearing on Moreno’s motion to transfer was held 

on August 7, 2019. The State filed a motion to reopen the case 

on September 13, and the court granted the motion at a hearing on September 24. Moreno objected to the State’s motion, 

stating that there was no statutory authority to reopen a hearing 

on a juvenile transfer request and that the expedited nature of 

such cases weighed against such a procedure. On appeal, he 

argues that the district court abused its discretion in granting 

the State’s motion. We disagree.

[3] Among factors traditionally considered in determining 

whether to allow a party to reopen a case to introduce additional evidence are (1) the reason for the failure to introduce 

the evidence, i.e., counsel’s inadvertence, a party’s calculated 

risk or tactic, or the court’s mistake; (2) the admissibility and 

materiality of the new evidence to the proponent’s case; (3) the 

diligence exercised by the requesting party in producing the 

evidence before his or her case closed; (4) the time or stage of 

the proceedings at which the motion is made; and (5) whether 

the new evidence would unfairly surprise or unfairly prejudice 

the opponent. State v. Stricklin, supra.

Applying these factors, we find no abuse of discretion in 

the court’s decision. The State moved to reopen the case so 

it could offer evidence of events that transpired with Moreno 

at the PRTF that occurred subsequent to the hearing on the 

motion to transfer; therefore, it was not evidence that could 

have been offered at the initial hearing. The evidence was 

both admissible and material to the case in that it provided 
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insight into Moreno’s amenability to treatment at the PRTF. 

The State became aware of the event about which it sought 

to introduce evidence through an August 23, 2019, letter, and 

it promptly moved to reopen the case on September 13, with 

a hearing scheduled for September 24. The court had not yet 

issued its order on the pending motion to transfer, and there 

is no indication that it would have issued such an order prior 

to September 24. Finally, the evidence which the State sought 

to introduce was within the knowledge of Moreno because it 

involved activities in which he was involved, so there could be 

no surprise or prejudice to him.

[4] While acknowledging that a court has discretion in ruling on a motion to transfer, Moreno argues that the district 

court abused this discretion because “juvenile transfer hearings are expected to progress in an expedited manner.” Brief 

for appellant at 28. While we agree that these hearings are to 

progress expeditiously, we also recognize that the determination of which court should exercise jurisdiction over a juvenile 

involves consideration of the juvenile’s best interests and the 

public’s safety. See § 43-276(1). In making this decision, the 

court should have before it all available information. Given 

the nature of the new information and the timeliness in which 

the State acted, we find no abuse of discretion in the district 

court’s decision to reopen the case.

2. Sound Basis for Retention 

in District Court

Moreno argues that the court abused its discretion in finding 

that the State met its burden of establishing a sound basis for 

retention of the case in the district court. We disagree.

Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016) grants concurrent jurisdiction to the juvenile court and the county or 

district court 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 
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may be initiated either in juvenile court or in the county or 

district court.

[5] 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 to juvenile court pursuant to § 29-1816(3). Upon a motion to transfer to juvenile 

court, the district court is required to hold a hearing which 

requires consideration of the following factors set forth in 

§ 43-276(1):

(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.
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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).

[6,7] As the Nebraska Supreme Court has explained, 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.” 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 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.

The district court set forth each of the factors contained in 

§ 43-276 and identified the evidence that it considered as to 

each factor. Moreno asserts that “[i]t is clear” the district court 

analyzed each of the factors under the erroneous belief he 

had been charged with a Class IV felony—operating a motor 

vehicle to avoid arrest—when he had, in fact, been indicted on 

a manslaughter charge, a Class IIA felony. Brief for appellant 

at 14. We agree with Moreno that the court misstated the classification of Moreno’s charge.

The indictment stated that “twelve or more jurors find a 

true bill in the case of the death of . . . Yost for the charge of 

manslaughter.” It further stated that Moreno “did kill . . . Yost 

unintentionally while in the commission of an unlawful act, 

to wit: Operate a Motor Vehicle to Avoid Arrest as defined 

by Neb. Rev. Stat. §28-905(1).” Neb. Rev. Stat. § 28-905(1) 

(Reissue 2016) states that “[a]ny person who operates any 

motor vehicle to flee in such vehicle in an effort to avoid 

arrest or citation commits the offense of operation of a motor 

vehicle to avoid arrest.” Section 28-905(3)(a)(ii) makes it a 
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Class IV felony if the flight to avoid arrest results in the death 

of any person. Therefore, violation of § 28-905(3)(a)(ii) is 

felony flight to avoid arrest. See State v. Kinser, 283 Neb. 560, 

811 N.W.2d 227 (2012).

Here, however, Moreno was not indicted for felony flight to 

avoid arrest; rather, he was indicted for manslaughter, which 

includes the causing of death of another unintentionally while 

in the commission of an unlawful act. See Neb. Rev. Stat. 

§ 28-305 (Reissue 2016). The unlawful act in which Moreno 

was engaged was fleeing to avoid arrest. Manslaughter is a 

Class IIA felony. Id. A Class IIA felony carries a penalty of 

0 to 20 years’ imprisonment, whereas a Class IV felony carries 

a maximum term of imprisonment of 2 years. Neb. Rev. Stat. 

§ 28-105 (Reissue 2016). We will factor in the court’s erroneous understanding of Moreno’s indictment where relevant 

below in our analysis of the § 43-276 factors.

(a) Type of Treatment

Relying upon the testimony of Bruhn and Hernbloom and 

the assessments and evaluations offered and received into 

evidence, the court found that Moreno has a long history of 

aggressive behaviors and requires treatment in a highly structured environment where he can develop positive coping skills. 

It recognized that all the treatments Moreno needs are available in the community, at the YRTC, the PRTF, and the NCYF, 

but determined that Moreno needs a secure, highly structured 

setting. It concluded that this factor militates in favor of retaining jurisdiction in the district court where Moreno can be 

treated at the NCYF. Moreno argues this factor should have 

been resolved in favor of transferring jurisdiction to the juvenile court. We disagree.

Moreno relies primarily upon the testimony of Bruhn and 

Hernbloom who opined that he was amenable to treatment 

based in part upon the progress he was showing at the time 

of the first hearing. However, 2 weeks after the hearing, 

Moreno again became aggressive and belligerent and was 
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discharged from the PRTF. Even without this additional conduct, the record is clear that Moreno had numerous opportunities through the juvenile court system in both Lancaster 

and Thayer Counties to rehabilitate himself and failed to take 

advantage of those opportunities. At the time of the hearing, 

he had been compliant with probation for only 4 months, yet 

this compliance would lead him to step down in the PRTF to 

a group setting at Boys Town and to less-structured settings. 

Given Moreno’s history, we agree with the district court that he 

is in need of a highly structured setting, and this factor weighs 

in favor of retaining jurisdiction.

(b) Whether Offense Included Violence

The district court noted the absence of any evidence that 

Moreno intended to harm Yost, but recognized the ultimate outcome. It did not specify whether this factor weighed in favor 

of retention or transfer. Moreno argues it weighs in favor of 

transfer because there was no malice or forethought.

We agree that Moreno’s indictment did not arise out of violence in the usual sense. What started out as a poor decision to 

steal a vehicle snowballed into more poor decisions in trying 

to evade law enforcement. This situation differs from many 

in that Moreno did not intend to engage in violent behavior; 

therefore, we find this factor weighs in favor of transfer.

(c) Motivation for Offense

The district court determined that Moreno was motivated by 

a desire to avoid the consequence of the vehicle theft. Moreno 

argues on appeal that this is a mischaracterization and fails 

to acknowledge that all four juveniles participated, creating a 

level of peer pressure.

According to Bruhn’s report, Moreno set out that night 

to “‘have fun.’” Keeping in mind that the offense for which 

Moreno was indicted is manslaughter, which is unintentionally causing the death of another while engaged in an unlawful act, we focus on the motivation for the unlawful act. Here, 

Moreno was fleeing to avoid arrest; therefore, we agree with 
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the district court that Moreno was motivated by a desire to 

avoid the consequences of having stolen a vehicle. His motivation, being self-serving, weighs in favor of retention.

(d) Age of Moreno and His Friends

Moreno was 15 years old at the time of the incident and 16 

years old at the time of the transfer hearing. He will turn 19 

years old in August 2022. His companions that night included 

two 14-year-old juveniles and one 16-year-old juvenile. The 

court did not indicate in whose favor this factor weighs, and 

Moreno argues that given his age and the fact that the other 

two survivors were referred to juvenile court, this factor supports a transfer to juvenile court. We disagree.

[8] The other two juveniles were ticketed for unlawful taking; however, they did not operate the fleeing vehicle that led 

to Yost’s death. Given the disparity in the charges between 

them and Moreno, the fact that they were referred to juvenile 

court does not impact our jurisdictional decision; however, 

looking solely at Moreno’s age, we find this factor weighs in 

favor of transfer. We recognize, however, that age alone does 

not support a transfer to juvenile court. See State v. Esai P., 

ante p. 226, 942 N.W.2d 416 (2020).

(e) Moreno’s Previous History

As detailed in the background section of this opinion, 

Moreno has a long history of involvement with the juvenile 

justice system despite his young age. He makes no argument 

that this factor could possibly support a transfer to juvenile 

court, and we find it militates in favor of retention.

(f) Moreno’s Best Interests

The district court found that Moreno’s best interests will 

be served in a secure setting in which he can receive treatment, but the court did not indicate in whose favor this factor 

weighed. There is no conflict in the evidence as to the type of 

treatment Moreno needs or that he requires a structured secure 

setting. The evidence indicates that this type of treatment 
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can be provided in various facilities, including the PRTF, 

the YRTC, and the NYCF. Bruhn opined that Moreno would 

receive more individualized treatment at a YRTC than at the 

NYCF. She advocated for service in the community.

On appeal, Moreno cites to Bruhn’s testimony and argues 

that placing him at the NYCF would expose him to persons 

who are “more criminal,” which would diminish his ability to 

be rehabilitated. Brief for appellant at 19. Therefore, he states, 

it would be in his best interests to transfer the case to juvenile 

court. We disagree.

Our analysis of Moreno’s best interests is not limited to 

where he can receive the recommended treatment, as that 

information is considered in our analysis of the first factor. 

Rather, the question of his best interests is broader. As we 

recently noted in State v. Esai P.: “[E]very juvenile’s best 

interests would be better served by attempting rehabilitation in 

the juvenile court system rather than being sentenced to a term 

of imprisonment in the adult corrections system.” Ante at 255, 

942 N.W.2d at 435. But as in Esai P., where past intervention 

through the juvenile court has proved unsuccessful, it may not 

be in the juvenile’s best interests to continue efforts through 

the juvenile justice system. We find that to be the circumstance 

here. Therefore, we find this factor weighs in favor of retaining 

jurisdiction in the district court.

(g) Consideration of Public Safety

Although not specifically stated, the court viewed this factor 

in favor of retaining jurisdiction, observing that despite intervention, Moreno’s law violations continued to escalate, putting his passengers and the public at risk. Moreno relies upon 

Bruhn’s testimony that Moreno posed only a moderate risk for 

general violence. We agree with the district court.

Upon initial assessment, Moreno was placed in the highrisk category for general violence. Four months later, Bruhn 

reassessed him and found him to be a moderate risk; however, 

at the time he had been compliant with the services offered. 
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Weeks later, however, he was released from the PRTF for 

assaultive and combative behavior. This leads us to believe that 

Moreno remains a public risk.

(h) Ability to Appreciate Nature 

and Seriousness of Conduct

We view the district court’s comments on Moreno’s ability to appreciate the nature and seriousness of his conduct as 

a neutral factor, and we agree. Although he was reported to 

have shown empathy and remorse for his actions that led to 

the death of his friend, he initially lied to law enforcement 

and accused Yost of being the driver. Thereafter, on March 12, 

2019, Moreno posted “Snapchat” videos threatening individuals who accused him of causing Yost’s death, which resulted in 

a citation for disturbing the peace. In support of his position 

that he appreciates the nature and seriousness of his conduct, 

Moreno focuses on testimony of Bruhn and Hernbloom but 

ignores the fact that his conduct reflects otherwise. Because 

we find the evidence mixed on this issue, we consider this factor neutral.

(i) Need for Detention Beyond Minority

It is under this factor that the district court makes the erroneous determination that Moreno is charged with a Class IV 

felony. As a result, it misstates the maximum amount of time 

that he could be incarcerated. It states:

In no event can his incarceration continue past his age of 

majority since he is presently only 16 years of age, [and] 

when jail credit is applied and if good time is earned, 

he will be released less than one year after any potential 

sentencing date, followed by a maximum one-year supervision post-release.

The court further states that in contrast, “adult probation could 

continue for five years, supervising him until he is 21 years 

of age.”

Moreno asserts that the court’s analysis is “clearly erroneous” and that it is “impossible to know how the Court’s 
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analysis would have changed had it realized that [Moreno] in 

fact could have remain [sic] incarcerated in the Department of 

Corrections long after he reached the age of majority.” Brief 

for appellant at 22. We agree that the court erred in determining 

the amount of time Moreno could be incarcerated; however, 

we find its comments indicative of its belief that Moreno’s best 

interests and the public’s need for security require Moreno’s 

detention or supervision beyond his 19th birthday.

A Class IIA felony carries no minimum sentence; therefore, 

we do not share Moreno’s concern that the court did not realize he could remain incarcerated long after he reaches the age 

of majority. Rather, we interpret the court’s statements as concern that Moreno will need at least supervision beyond the age 

of 19 and that the juvenile court would be unable to provide 

it. We view this factor in favor of the district court’s retention 

of jurisdiction.

(j) Mediation and Pretrial Diversion

Neither mediation nor a pretrial diversion program is available. Moreno makes no argument that these factor into a jurisdictional determination, so we decline to address them.

(k) Use or Possession of Firearm

The court noted that Moreno had threatened use of a firearm after this incident but acknowledged that no firearm was 

ever found. It did not state what weight, if any, it gave to 

this factor. Moreno argues it should be given no weight, and 

we agree.

(l) Juvenile Court Order

The court did not indicate if this factor weighed in favor of 

retention or transfer, and Moreno makes no argument that it 

does. We therefore give it no weight.

(m) Gang Member

Moreno admitted to being associated with a gang, although 

he claimed he was trying to remove himself from it. Because 
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of his alleged attempted removal, he argues this weighs in 

favor of transfer. We disagree. We view his gang status at the 

time of the transfer hearing, and according to Moreno’s own 

admission, he had been associated with a gang for about 6 

months prior to the December incident. Therefore, we view this 

factor in favor of the district court’s retention of jurisdiction.

(n) Other Relevant Matters

The court found that the adult nature and circumstances 

of the crime causing the death of a 14-year-old juvenile is a 

circumstance more appropriate for adjudication in the district 

court. Moreno asserts that because the Legislature has not 

prohibited the removal of a manslaughter charge to the juvenile court, “the legislature clearly envisioned circumstances 

where no sound basis would exist to keep such charges in adult 

court.” Brief for appellant at 25.

While there may be circumstances in which a manslaughter 

charge may be appropriate in juvenile court, we determine 

the present case does not present such circumstances. Moreno’s 

night began with mischief when he arrived at Yost’s residence near midnight and waited for his friend to sneak out of 

the house. The two of them then met up with the other two 

boys near 3 a.m. The four boys spent a period of time ringing 

doorbells and running away and stealing items from unsecured vehicles.

Moreno and the other 14-year-old boy stole the vehicle when 

they spotted it unoccupied with its engine running and drove 

down the street to pick up the other two boys. After evading 

law enforcement once, the boys hid, waiting to see if they were 

found again. When they got cold, they returned to the vehicle; 

however, they were spotted by law enforcement a second time, 

and law enforcement gave chase. Moreno appears to have been 

the driver for the entire sequence of events. The length of time 

that elapsed and the escalating events that occurred support 

a determination that Moreno made many conscious bad decisions that resulted in the death of his friend. We agree with 
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the district court that the circumstances of the situation support retention in the district court.

Moreno claims that the events he engaged in that night and 

the following morning were driven by impulsivity and impetuousness; therefore, the case should be tried in the juvenile 

court. We disagree. When we consider all of the relevant 

factors, including Moreno’s past involvement with the juvenile court system, the rehabilitative efforts that were made, 

Moreno’s subsequent behavior after the initial transfer hearing, 

and the prolonged activities that culminated in Yost’s death, 

we find no abuse of discretion in the court’s refusal to transfer 

the case to juvenile court.

3. Excessive Delay

Moreno argues that the court created an excessive judicial 

delay when it took 4 months to issue its order. He claims this 

delay prejudiced his ability to participate in services offered 

through the juvenile court. Because we find no abuse of discretion in the district court’s refusal to transfer the case, we find 

no prejudice to Moreno for any delay.

VI. CONCLUSION

Based upon the reasons articulated above, we find no abuse 

of discretion in the district court’s procedure or in its order 

finding a sound basis for retaining Moreno’s case in district court.

Affirmed.