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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. WELLS

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

TYON WELLS, APPELLANT.

Filed September 25, 2018. No. A-18-527.

Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge. 

Affirmed.

Kevin A. Ryan, of Ryan Law Offices, for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, Derek T. Bral, Senior Certified 

Law Student, and, on brief, Sarah E. Marfisi, for appellee.

PIRTLE, BISHOP, and ARTERBURN, Judges.

ARTERBURN, Judge.

INTRODUCTION

Tyon Wells was 14 years old when he was charged in the Douglas County District Court 

with second degree murder, second degree assault, and two counts of use of a deadly weapon to 

commit a felony. He filed a motion to transfer the case to juvenile court, which was denied. Wells 

appeals, assigning error to the denial of the motion to transfer. We affirm.

BACKGROUND

On March 9, 2018, the State filed an information charging Wells with second degree 

murder, in violation of Neb. Rev. Stat. § 28-304 (Reissue 2016), a Class IB felony; second degree 

assault, in violation of Neb. Rev. Stat. § 28-309 (Reissue 2016), a Class IIA felony; and two counts 
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of use of a deadly weapon (firearm) to commit a felony, in violation of Neb. Rev. Stat. § 28-1205 

(Reissue 2016), each a Class IC felony. The information indicated that the event which gave rise 

to the charges occurred “[o]n or about” February 25, 2018. In February 2018, Wells was 14 years

2 months old. He was born in December 2003.

Wells filed a motion to transfer the matter to juvenile court under Neb. Rev. Stat. § 29-1816 

(Supp. 2017). Specifically, Wells asked the district court to waive jurisdiction of the matter to the 

separate juvenile court for further proceedings.

A juvenile transfer hearing was subsequently held by the district court. During this hearing, 

the State called a detective of the Omaha Police Department to testify. In addition, the State offered 

into evidence numerous police reports regarding the incident which gave rise to Wells’ current 

charges; police reports regarding a previous incident which involved Wells; and a photograph of 

Wells holding a handgun.

The evidence offered by the State revealed that during the late afternoon on February 25, 

2018, the Omaha Police Department received notification that three gunshots had been fired in the 

area of 25th and Crown Point Avenue. Shortly after police received this notification, 911 

emergency dispatch service operators received a telephone call from the victim of a shooting. The 

victim reported that he had been shot near 25th and Crown Point Avenue, but that he was currently 

located in the parking lot of a nearby high school. Officers were dispatched to the high school 

where they located three individuals near a vehicle. Seventeen-year-old Devon D. was the driver 

of the vehicle and the person who had telephoned 911. He was suffering from a gunshot wound to 

the arm. Sixteen-year-old Landon H. was a backseat passenger of the vehicle. He was not injured. 

Seventeen-year-old Zachary P. was the front seat passenger of the vehicle. He was suffering from 

a gunshot wound to his back. Both Devon and Zachary were transported to the hospital. Devon 

was treated and subsequently released. Zachary was ultimately pronounced dead after arriving at 

the hospital. A bullet had entered the left side of his back, just below his shoulder blade. It then 

traveled from left to right and from back to front, striking multiple major organs.

Police interviewed Devon and Landon about the circumstances surrounding the shooting. 

Devon reported that he had driven Zachary and Landon to meet an individual so that Zachary could 

sell this individual some marijuana. When Devon, Landon, and Zachary arrived at the previously 

agreed upon location where they were to meet the buyer, Devon observed two male individuals 

approach his vehicle. One of the individuals was Caucasian and one of them was African 

American. Both individuals appeared to Devon to be “high school age.” Devon later positively 

identified the Caucasian individual as 15-year-old Jesse V., who attended the same high school as 

Zachary.

Devon described how Jesse opened the rear driver’s side door of Devon’s vehicle and got 

inside. The African American individual, whom Devon did not know, stood outside of the vehicle, 

near the open rear driver’s side door. Jesse and Zachary began to discuss the sale of the marijuana. 

Jesse asked to see the marijuana, but Zachary wanted to see Jesse’s money first. Finally, Zachary 

told Jesse that he would just sell him the marijuana at school the next day. Jesse then started to get 

out of the vehicle. As Jesse was getting out, the African American male pulled out a gun, pointed 

it at Devon, Landon, and Zachary, and instructed them to give him the marijuana. Zachary told 
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Devon to start driving and he complied. As the vehicle started to move, three gunshots were fired 

into the vehicle, one shot struck Devon and one shot struck Zachary.

When questioned by police, Landon gave an account that was “almost identical” to 

Devon’s statement. In addition, Landon also positively identified Jesse as being the Caucasian 

individual who got into Devon’s vehicle to buy marijuana. 

Police later arrested and questioned Jesse. Jesse told officers that he attended high school 

with Zachary and considered Zachary to be a friend. In addition, Jesse indicated that he had bought 

marijuana from Zachary on numerous occasions. Two days before the shooting, on Friday, 

February 23, 2018, Jesse had tried to purchase half an ounce of marijuana from Zachary. Zachary 

indicated that he did not have what Jesse wanted; however, he could get Jesse something during 

the weekend. Zachary then sent Jesse a text message on February 25 indicating that he now had 

marijuana to sell to Jesse. The two set up a time to meet that afternoon. Information recovered 

from Zachary’s cellular telephone confirmed Jesse’s description of their conversations in the days 

leading up to the shooting.

Jesse informed police that “he was short on money” to buy the marijuana. As a result, he 

contacted a friend, Wells, and asked if Wells wanted to go in together to purchase the marijuana. 

Wells agreed. Jesse indicated that he and Wells intended to purchase half an ounce of marijuana 

from Zachary.

After Jesse observed Devon’s vehicle pull over near 25th and Crown Point Avenue, Jesse 

and Wells began walking toward the vehicle. Jesse told police that he knew that Wells frequently 

carried a gun with him. Jesse thought that, oftentimes, Wells was carrying the guns for his fellow 

gang members. Jesse told police that he did not have any specific knowledge about whether Wells 

was carrying a gun as they approached Devon’s vehicle.

Jesse believed that Zachary was nervous about selling him marijuana in Wells’ presence 

because Zachary was not familiar with Wells. Jesse indicated that ultimately he and Zachary 

agreed to conduct the drug transaction at school the next day. Jesse said that he began to get out 

of the car, and noticed that Wells had pulled out a handgun from his pocket. Jesse believed that 

Wells was pointing the gun at Zachary. Jesse said that he immediately put his hands in the air and 

asked Wells, “What are you doing?” He also told Wells to “Put that away.” Immediately after 

Jesse said this, Wells started firing into the vehicle. Jesse and Wells then ran away from the scene. 

While they were running, Jesse asked Wells “[W]hy are you shooting at people over a baggy of 

weed?” Jesse indicated that Wells responded, “because they weren’t going to give it up.”

The next morning, after Jesse learned that someone had died the day before in a shooting 

at 25th and Crown Point Avenue, he had contact with Wells. During this contact, Wells and Wells’

sisters told Jesse not to be a “snitch.” They also instructed Jesse to remove the SIM card from his 

cellular telephone and not to talk to the police. They then coached Jesse on how to get rid of other, 

incriminating evidence. Jesse admitted that he did remove the SIM card from his phone and then 

dropped it somewhere in the yard of Wells’ residence.

Police later arrested Wells. During their investigation, police learned that Wells is a 

member of the Flatland Bloods gang. In addition, police recovered a photograph that had been 

posted on Wells’ “Facebook page.” That photograph depicts Wells taking a picture of himself 

while he holds what appears to be a firearm in his right hand.
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At the transfer hearing, the State also offered evidence of a previous incident involving 

Wells where the police were contacted. In March 2017, when Wells was 13 years old and in the 

seventh grade, he was cited for disorderly conduct due to an incident involving the school bus he 

was riding. The school bus had been ordered to pull off of the road due to inclement weather. Wells 

apparently contacted his mother to come and pick him up. Wells’ mother arrived at the school bus’

location a short time later. However, the bus driver would not permit Wells to get off of the bus 

pursuant to the instructions of the bus’ dispatch service. Wells became very upset. He began yelling 

obscenities at the bus driver, used gang references to intimidate the driver, and banged and kicked 

the bus door until it opened. Wells also attempted to reach over the driver in an attempt to push 

buttons and start the bus. The bus driver indicated that she had to physically remove Wells’ hands 

from the dashboard and the steering wheel. The driver also indicated that she felt very threatened 

by Wells’ actions and was concerned about the safety of the other students on the bus.

As a result of the incident on the school bus, Wells completed a diversion program through 

the juvenile court. He was also expelled from school.

After the State rested, Wells offered the testimony of three witnesses: Colleen A. Conoley, 

a licensed psychologist who conducted a neuropsychological evaluation of Wells; Thomas 

Incontro, an attorney who is frequently appointed as a guardian ad litem for juveniles involved 

with juvenile court; and Tonya Wells, Wells’ mother.

Conoley testified that she is a neuropsychologist who specializes in children and 

adolescents. In order to complete her psychological evaluation of Wells, she met with him on four 

separate occasions while he was confined at the Douglas County Youth Center. She also reviewed 

some collateral information, including police reports regarding Wells’ current charges and his 

school records. Conoley also obtained information from Wells’ mother, Tonya.

Conoley learned that prior to his arrest, Wells lived primarily with Tonya, with the 

exception of a 1-year period when he was approximately 6 years old. During that 1-year period, 

Wells lived with his grandmother while Tonya was in jail. Wells has three sisters.

Tonya reported that Wells received good grades in school until he reached the sixth grade, 

when his grades began to decline. In contrast to Tonya’s report about Wells’ academic abilities, 

testing of Wells revealed that he has a much lower than average IQ. Conoley testified that Wells’

ability to answer questions was much lower than expected for an average 14-year-old. In addition, 

Conoley indicated that Wells has a “diminished capacity for judgment.” He is focused only on 

immediate gratification.

Wells has a history of behavioral problems at school, which are indicative of a lack of 

respect for authority figures. Conoley detailed these problems in her report. In addition, she noted 

that her own testing revealed that Wells scored high on a scale measuring violent and aggressive 

tendencies and psychopathic features.

Wells’ behavioral problems at school began when Wells was in the third grade. At that 

time, Wells was suspended from school for 2 days after he refused to follow the instructions of a 

staff member and, instead, decided to leave the school grounds. Wells had to be chased and 

escorted back to the school by a security guard. While he was being escorted back to school, Wells 

screamed obscenities and threatened the security guard with violence.
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In the fourth grade, Wells admitted to receiving marijuana from a fellow student and then 

giving that marijuana to another student. On other occasions during his fourth grade year, Wells 

screamed and punched a wall; engaged in a mutual fight with another student; and physically 

assaulted a student by forcefully punching him in the head, chest, and stomach. In the fifth grade, 

Wells was punished for pulling the fire alarm and slapping another student who was “on his 

nerves.”

At the beginning of his sixth grade year, Wells was punished at school numerous times for 

refusing to obey authority figures and being disrespectful. During the second half of the year, after 

Wells had turned 12 years old, he was punished for fighting on one occasion. On another occasion, 

Wells became upset with his basketball coach during a basketball game. Wells tried to hit the 

coach. It took at least three other individuals to restrain Wells. On a third occasion, Wells was 

punished after becoming extremely angry in the cafeteria. He flipped over a 250-pound serving 

cart again and again, moving it toward cafeteria staff.

In seventh grade, Wells was punished on at least 26 different occasions for being 

disrespectful to school staff or being disruptive in class. In addition to these instances, Wells was 

also punished for admitting to smoking marijuana before coming to school; recklessly running 

through the hallway and colliding with another student which led to the other student being 

transported to the hospital by ambulance; and wearing gang apparel. In March of his seventh grade 

year, Wells was expelled from school after the bus incident detailed above. Approximately 1 

month later, Wells was expelled from his new school for fighting and rough housing with another 

student.

In eighth grade, prior to Wells’ arrest on the current charges, he was punished on at least 

10 different occasions for being disrespectful to school staff or being disruptive in class. He was 

also punished for stealing from another student.

Wells admitted to Conoley that beginning at age 12, he began smoking marijuana multiple 

times per week. Also at the age of 12, Wells was initiated into the Flatland Bloods gang. Wells 

indicated that his initiation involved “a circle beating.” When Wells was 13 years old, he was 

diagnosed as having a sexually transmitted disease.

Conoley believed that Wells’ defiant behaviors escalated when he was approximately 12 

years old. She opined that this escalation in behavior was directly associated with Wells’ frequent 

marijuana use, which also began when he was 12 years old. Conoley stated that Wells’ frequent 

marijuana use resulted in his “poor ability to regulate anger.” Specifically, Conoley explained how 

Wells’ marijuana use affected his behavior:

[T]he problem isn’t during the toxicity or the high period, the two hours that the 

substances in effect in his body. The problem is what I would refer to as the marijuana 

hangover that can last up to two weeks in adolescence. And so what happens from a 

neurocognitive prospective [sic] is that we have our own system in our brain with special 

receptors that receive molecules very similar to the chemicals in marijuana, and we call 

those Cannabinoids.

So we may [sic] our own Cannabinoids. And what this system does is it has a very 

high concentration of receptors within the hippocampus. And that allows the system in the 
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brain to really deal with stress and deal with anger and tension, and it also helps someone 

pay attention, take in more sensory experiences and build memories.

And so when he isn’t high, the problem is that the THC, what’s [sic] it’s done to 

those receptor sites is because it is taken in at a four times more readily rate, it downgrades 

the receptor sites, so he can’t access his own Cannabinoid system, and so he’s less capable 

of dealing with frustration, stress, those types of things. And some marijuana, it comes 

across as paranoia. For him, it looks like it came across as a poor ability to regulate anger.

Conoley also opined that many of Wells’ behavioral problems were not “early onset,” but 

instead were “largely adolescent-confined.” Additionally, Conoley associated Wells’ negative 

behaviors, including the behavior associated with the current charges, with peer pressure. Conoley 

believed that Wells thought he would gain approval from his peers for the shooting. She believed 

that this type of adolescent thinking made Wells more likely to engage in risky behavior.

Ultimately, Conoley recommended that Wells’ criminal case be transferred to the juvenile 

court. Conoley based her recommendation on the nature of Wells’ behavioral problems; his ability 

to recognize those problems; and his amenability to treatment. Conoley specifically opined that 

Wells was amenable to change. In fact, she reported that Wells’ responsibility and motivation to 

change tested at high levels. She indicated that during her time with Wells, he started to appreciate 

that smoking marijuana was bad for him. In addition, he began to recognize that he has an anger 

problem that he needs to address.

Conoley testified that in the juvenile court system, Wells could receive rehabilitation and 

treatment that is focused on teenagers. In addition, he could receive medication to assist in his 

recovery process. In contrast, Conoley testified that the services available to Wells if the case were 

to proceed in district court are “severely limited.” Conoley identified three potential secured 

residential treatment facilities for juveniles dispersed across the country which would be able to 

meet Wells’ needs. While she was unable to provide specifics about the level of security present 

at each of these facilities or about the expected length of Wells’ treatment, she did affirmatively 

testify that, based upon her experience, at least two of the recommended facilities would accept 

Wells into the program and would treat his behavioral problems. Conoley noted that Wells’ family, 

especially his mother, was very supportive of him participating in programs through the juvenile 

court. Conoley believed this support would assist Wells in the treatment process.

During the State’s cross-examination of Conoley, Conoley admitted that she has worked 

on eight or nine similar cases where a transfer of criminal charges from district court to juvenile 

court was being considered. She conceded that she had always recommended transfer to the 

juvenile court and had never recommended that a case should remain in district court. Conoley 

also indicated during her cross-examination that Wells’ brain would not be fully mature until he 

reached his mid to late twenties. Conoley acknowledged that the juvenile court would lose 

jurisdiction over Wells when he turned 19 years old.

Wells also called Incontro to testify at the transfer hearing. Incontro testified that he 

frequently serves as a guardian ad litem who acts in the best interests of the juveniles who are 

within the jurisdiction of the juvenile court. He indicated that if Wells’ case was transferred to the 

juvenile court, that court would lose jurisdiction over Wells when he turned 19 years old. Incontro 
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opined, however, that because Wells was only 14 years old, that the juvenile court would have 

jurisdiction over him for a relatively “long time in the juvenile world.” Incontro also testified that 

while the juvenile court had jurisdiction over Wells, it could offer him such programs as mental 

health treatment, including necessary medications; drug treatment; and family therapy. Incontro 

was able to identify at least three facilities that he believed would be able to provide Wells with 

the treatment that he requires.

Finally, Wells called Tonya to testify on his behalf. Tonya first described Wells as a small 

child. She said that he was loving, caring, and very energetic. He also loved playing sports and 

received good grades in school. Tonya indicated that when Wells began to get in trouble at school, 

she would talk to him about making better choices and she would punish him by grounding him 

or taking away his cellular telephone. Tonya believed that Wells was typically apologetic for his 

inappropriate behavior.

Tonya testified that after the bus incident during Wells’ seventh grade year, he was placed 

in a diversion program through the juvenile court. As a part of that program, Wells attended anger 

management classes and individual counseling. Because he successfully completed the diversion 

program, no criminal charges were filed against him. Tonya believes that if Wells’ current case is 

transferred to the juvenile court, he will comply with any program offered to him. She also 

indicated that she would do “everything and beyond” to support him with his juvenile court 

services.

During her testimony, Tonya admitted that she did not have any prior knowledge about 

Wells’ gang involvement or the extent of his marijuana use.

After the hearing, the district court entered an order denying Wells’ motion to transfer the 

case to juvenile court. In reaching its decision, the court found that multiple factors weighed in 

favor of the district court retaining jurisdiction over Wells. These factors included that the charges 

against Wells involve “the most serious acts of violence;” that Wells instructed Jesse to destroy 

evidence and not talk to police; that Wells is clearly a threat to public safety; that Wells has ready 

access to firearms; that Wells regularly uses marijuana; and that Wells admits that he is a member 

of a local street gang. In addition, the court noted in its order that the juvenile diversion program 

Wells was required to complete when he was 13 years old does not appear to have had any effect 

on his “episodes of angry and defiant behavior.”

The district court also found, “One of the few factors that weigh in favor of transfer to 

Juvenile Court is [Wells’] age.” Because the juvenile court would not lose jurisdiction over Wells 

until he reached 19 years of age, services could be provided to him for approximately 41⁄2 years. 

However, the court also considered Conoley’s testimony that Wells’ brain will not be fully mature 

by the time he reaches 19 years of age. The court found that “[t]his coupled with [Wells’] extreme 

impulsivity and access to firearms weighs against transfer.” The court indicated its belief that 

Wells’ need for treatment and rehabilitation will extend “far beyond the period of time [the] 

juvenile court would have jurisdiction.”

Finally, the court considered that, despite Wells’ history of “threatening and assaultive 

behaviors,” he has never before been formally charged or referred to the juvenile court for 

intervention. He did complete a diversion program, but no formal charges were ever filed against 

him in that incident.
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Ultimately, the court reasoned, “Using the balancing test by which public protection and 

societal security are weighed against the practical and non-problematic rehabilitation of [Wells], 

the Court finds that [the] Motion to Transfer to the Juvenile Court is overruled and that this Court 

shall maintain jurisdiction over this case.”

Wells appeals from the district court’s order.

ASSIGNMENT OF ERROR

On appeal, Wells contends that the district court abused its discretion in denying his motion 

to transfer his 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. 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.

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 (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 

juvenile court or in the county or district court. In the present case, all of the allegations contained 

in the information filed against Wells put him within this category of juvenile offenders. Wells 

was 14 years 2 months old at the time of the offenses, and as noted by his counsel at oral argument, 

he would not have been subject to district court jurisdiction had the offenses occurred 

approximately 2 months earlier. Second degree murder is a Class IB felony. See § 28-304. Second 

degree assault is a Class IIA felony. See § 28-309. Use of a deadly weapon to commit a felony is 

a Class IC felony. See § 28-1205(1)(c).

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 § 29-1816(3).

In the instant case, when Wells 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) (Reissue 2016):

(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 
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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).

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.

In this case, the district court found almost all of the factors set forth in § 43-276(1) favored 

retaining the case. Such factors include the serious nature of the charges Wells is currently facing; 

his lengthy history of violent behavior, particularly in the school setting; his access to firearms; his 

involvement in a local street gang; and his extensive use of marijuana. Based upon our review of 

the record, we cannot say that the district court abused its discretion in its consideration of these 

factors.

The evidence presented at the termination hearing revealed that Wells shot two unarmed 

teenagers over a small amount of marijuana. One of Wells’ victims died as a result of his wounds. 

According to interviews with the surviving victims and with Jesse, who was with Wells at the drug 

deal, the shooting was relatively unprovoked. Essentially, Wells did not want to wait until the next 

day to buy the marijuana. Additionally, contrary to Conoley’s testimony at the hearing, there did 

not appear to be any peer pressure placed on Wells to engage in the shooting. In fact, Jesse told 

police that when Wells pulled out the gun, Jesse told him to stop and not to shoot. Jesse could not 

understand why Wells shot Zachary and Devon. Zachary was Jesse’s friend.

After the shooting, Wells attempted to hide his involvement by telling Jesse not to “snitch”

on him and by instructing Jesse to destroy any relevant evidence.

The evidence also revealed that Wells has a history of threatening and assaultive behaviors, 

which date back to his third grade year. He has repeatedly threatened and assaulted teachers, staff, 

and other students. He has demonstrated an extreme disrespect for authority. It does not appear 

that any intervention taken by the school system has affected or altered Wells’ violent tendencies. 
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In fact, when Wells was expelled from school after the bus incident in seventh grade, he was 

expelled from his alternative school only 1 month later. And, while there has been minimal 

attempts to intervene with Wells’ behavioral problems outside of school, the record indicates that 

Wells’ recent participation in a juvenile diversion program did not alter his behavioral problems 

at all. Conoley’s testing of Wells revealed that he scored high on scales measuring aggressiveness, 

violence, and psychopathic features. Conoley reported that Wells does not consider the feelings of 

others.

Evidence presented by the State indicated that Wells has access to firearms and is known 

to carry a handgun on his person. Jesse reported to police that Wells often carries handguns for 

other, older members of his gang. Wells admitted to smoking marijuana on a regular basis since 

he turned 12 years old. The motivation for Wells’ current offense appears to have been obtaining 

marijuana in order to support his ongoing drug habit.

The district court did find that a few of the factors set forth in § 43-276(1) favored 

transferring the case. Such factors include Wells’ young age and his lack of any formal criminal 

history. However, the district court found that despite the fact that Wells is only 14 years old, the 

juvenile court would not have sufficient time to provide him with treatment before that court lost 

jurisdiction when Wells turned 19 years old. The district court indicated that Wells posed a serious 

risk to the safety of the public and that his “extreme impulsivity and access to firearms” is very 

concerning.

We cannot say that the district court’s findings about Wells’ long-term treatment needs are 

an abuse of discretion. Moreover, we note that Wells presented rather limited evidence about 

appropriate juvenile treatment centers which would be willing to accept him given the serious 

nature of his crimes and given his involvement in a street gang. Conoley testified that she thought 

there were three facilities that would be willing to house Wells. However, she was unable to 

provide much information regarding the possible length of his care at those centers or about the 

security of those centers.

Additionally, as recently noted by the Nebraska Supreme Court, “the possibility of 

disposition under the juvenile code remains available to juveniles even if their case is transferred 

from juvenile to criminal court.” In re Interest of Tyrone K., 295 Neb. 193, 211, 887 N.W.2d 489, 

501 (2016). Specifically, Neb. Rev. Stat. § 29-2204(5) (Reissue 2016) provides:

Except when the defendant is found guilty of a Class IA felony, whenever the defendant 

was under eighteen years of age at the time he or she committed the crime for which he or 

she was convicted, the court may, in its discretion, instead of imposing the penalty provided 

for the crime, make such disposition of the defendant as the court deems proper under the 

Nebraska Juvenile Code.

In his brief on appeal, Wells asserts that the district court erred in failing to transfer his 

case because he presented expert testimony in favor of the transfer. Wells contends that the State 

failed to provide any expert to contradict his expert’s opinion. Wells’ assertion lacks merit. There 

is no statutory requirement that the State must have an expert testify at transfer hearings. Further, 

although Conoley’s testimony may have been relevant and helpful to the district court’s 

decisionmaking, the court was not bound by her ultimate opinion that Wells could be successfully 
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rehabilitated in a secure juvenile detention center. See Lewison v. Renner, 298 Neb. 654, 905 

N.W.2d 540 (2018) (triers of fact are not required to take opinions of experts as binding upon 

them, and determining weight to be given expert testimony is uniquely province of fact finder). 

The district court was free to reach its own conclusion based upon the totality of the evidence 

before it.

Upon our review of the record, we cannot say that the district court abused its discretion in 

denying Wells’ motion to transfer to juvenile court and in finding a sound basis to retain 

jurisdiction in district court. While there were factors that weighed in favor of transferring the 

matter to juvenile court, like Wells’ age, there were other factors that weighed in favor of retaining 

jurisdiction in the district court. The district court balanced the factors it deemed most significant, 

and there was appropriate evidence to support its decision. 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. See State v. Goodwin,

278 Neb. 945, 774 N.W.2d 733 (2009).

CONCLUSION

For the reasons stated in this opinion, we conclude that the district court did not abuse its 

discretion in denying Wells’ motion to transfer his case to juvenile court.

AFFIRMED.