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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

STATE v. BLIMLING

Cite as 25 Neb. App. 693

State of Nebraska, appellee, v. 

Seth Ehren Blimling, appellant.

___ N.W.2d ___

Filed March 27, 2018. No. A-17-1079.

1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and 

Error. A trial court’s denial of a motion to transfer a pending criminal 

proceeding to the juvenile court is reviewed for an abuse of discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

4. Courts: Juvenile Courts: Jurisdiction: Final Orders: Appeal and 

Error. An order granting or denying transfer of a case from county or 

district court to juvenile court shall be considered a final order for the 

purposes of appeal.

5. Courts: Juvenile Courts: Jurisdiction: Proof. After 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. The burden of proving a sound basis for 

retention lies with the State.

6. Courts: Juvenile Courts: Jurisdiction: Evidence. 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.

Appeal from the District Court for Burt County: John E. 

Samson, Judge. Affirmed.

Timothy S. Noerrlinger for appellant.

Nebraska Supreme Court Online Library

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

04/04/2018 12:20 AM CDT
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

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

Duffy for appellee.

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

Arterburn, Judge.

INTRODUCTION

After giving a statement to police in which he admitted 

to intentionally hitting a classmate with his car, Seth Ehren 

Blimling was charged in the district court for Burt County with 

attempted first degree murder, assault in the second degree, 

and failing to render aid. Blimling was 15 years old at the time 

of the incident. The district court denied Blimling’s motion 

to transfer his case to juvenile court. Blimling appeals from 

the district court’s decision here. Upon our review, we do 

not find that the district court abused its discretion in denying Blimling’s motion to transfer his case to juvenile court. 

Accordingly, we affirm.

BACKGROUND

In February 2017, Blimling was 15 years old and a sophomore at Tekamah-Herman High School in Tekamah, Nebraska. 

On the morning of February 23, Blimling observed S.S., who 

was his “[e]x-best friend,” and another classmate driving 

toward S.S.’ house. Blimling followed them in his vehicle, and 

when they pulled into S.S.’ driveway, Blimling parked in front 

of a nearby house. S.S. started to approach Blimling’s vehicle, 

and Blimling “floored it as fast as it [could] go and . . . drove 

towards [S.S.]” Blimling hit S.S. with his car, causing S.S.’ 

head to hit and crack the windshield of the vehicle and causing S.S. to fall to the ground. Blimling left the scene of the 

accident and drove to a church parking lot, where he called law 

enforcement and reported what he had done.

In his statement to law enforcement, Blimling stated that it 

had “felt good” to hit S.S. with his car. Blimling also stated 

that when he saw S.S. get up after being hit, he thought, 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

“‘Darn’ him.” Blimling admitted that he had thought about 

hurting S.S. the night before this incident and stated that when 

he had seen S.S. driving home that morning, he thought, “‘Hey 

there’s [S.S.,] why not.’” He stated, “I also followed him for 

a bit too. I hated him.” Blimling told law enforcement that 

he was upset with S.S. because S.S. had been harassing him 

using social media and had broken a golf club that belonged to 

Blimling’s great-grandfather. In text messages to another classmate about this incident, Blimling stated that he “wanted him 

hurt bad” and that he “wanted him dead.”

Another classmate of Blimling’s observed the incident and 

provided a statement to law enforcement. He reported that 

Blimling “took off and hit [S.S.], he didn’t stop or nothing[,] 

he kept on driving.” Another student reported a somewhat similar incident involving Blimling. The student reported that one 

day as he was walking home, Blimling, who was driving a car, 

slowly followed the student for a distance. When the student 

crossed the street, Blimling drove very close to him and said, 

“‘Better watch your back.’”

The State filed an information charging Blimling with 

count I: attempted first degree murder, in violation of Neb. 

Rev. Stat. §§ 28-201(1)(b) and 28-303(1) (Reissue 2016), 

a Class II felony; count II: assault in the second degree, in 

violation of Neb. Rev. Stat. § 28-309(1)(a) (Reissue 2016), a 

Class IIA felony; and count III: failure to render aid, in violation of Neb. Rev. Stat. § 60-697 (Reissue 2016), a Class IIIA 

felony. Shortly after the State filed the information, Blimling 

filed a motion requesting the district court to waive jurisdiction 

and transfer the case to juvenile court.

The district court conducted an evidentiary hearing on 

Blimling’s motion. The evidence presented at the hearing 

reflects that Blimling was born in August 2001. Although 

Blimling was 15 years old at the time of the offenses in 

February 2017, he had turned 16 years old by the time of 

the evidentiary hearing, which was held on August 11, 2017. 

Both of Blimling’s biological parents testified at the hearing. 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

In addition, a probation officer testified about various treatment alternatives.

Steve Ortmeier, a chief deputy probation officer, testified 

to the various treatment alternatives that would be available 

for Blimling should his case remain in the district court as 

opposed to the juvenile court. Ortmeier testified that with the 

exception of an in-home intensive family preservation program, the remaining probationary programs Blimling could 

be ordered to participate in would be available as part of both 

a juvenile or adult probation order. He further noted that an 

adult probation order could remain in effect for 5 years from 

the date of sentencing. A juvenile probation order would begin 

at disposition and end when Blimling turned 19 years old. 

Ortmeier testified to sanction alternatives in both adult and 

juvenile court.

Blimling’s father, Patrick Blimling (Patrick), testified that 

in February 2017, Blimling had been residing with him for 

approximately 4 years. Patrick testified that in February 2017, 

Blimling was a sophomore in high school. However, he was 

behind on his credits due to some “behavioral issues” that 

had occurred during the school year. Patrick confirmed that 

Blimling had an individualized education plan due to his 

behavioral issues.

During the 4 years Blimling resided with Patrick, Blimling 

had spent some time in counseling to address his attention 

deficit hyperactivity disorder (ADHD). However, in the months 

leading up to February 2017, Blimling was not engaged in any 

type of counseling. In addition, Patrick testified that Blimling 

used to take medication for his ADHD condition when he was 

younger, but that he had stopped taking the medication during his eighth grade year because of the side effects. Patrick 

testified that he did not feel that Blimling’s ADHD condition was “bad enough” to warrant the medication that had 

been prescribed.

Patrick testified that Blimling and S.S. were good 

friends prior to February 2017. In the weeks leading up to 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

February 23, 2017, however, a change in their relationship 

had occurred. Patrick described the relationship as having 

“deteriorated” and testified that Blimling’s demeanor as a 

result of the problems in the relationship was “anger, a little 

bit of disappointment, upset.” Patrick recounted an incident 

where S.S. had broken a golf club as a possible source of the 

relationship problems.

Blimling’s mother, Bridgette Kult (Bridgette), also testified at the hearing. She testified that in February 2017, she 

had custody of Blimling pursuant to a court order, but she 

had been allowing him to live with Patrick since approximately June 2014. She agreed with Patrick’s testimony that 

Blimling had an individualized education plan at school due 

to his behavioral issues. She explained that these issues were 

mostly due to Blimling’s ADHD. He was easily distracted 

and fidgety during classes. Bridgette testified that she did 

not recall being consulted about Blimling’s stopping his 

ADHD medication.

The bulk of Bridgette’s testimony focused on events which 

occurred after February 23, 2017. Bridgette testified that 

Blimling lived with her for a period of time after February 

23. Blimling lived with Bridgette, her husband, and Blimling’s 

half sister after he was released from custody in April 2017. 

However, in mid-April, there was an incident between Blimling 

and Bridgette’s husband that caused Blimling to leave their 

residence. Bridgette testified that Blimling and her husband 

had a confrontation after Blimling failed to listen to her 

repeated instructions. “[I]t was verbal shortly, then it elevated 

and became physical very briefly, [and] the boys went their 

separate ways.” Blimling was unable to calm himself down 

after this incident, and as a result, he was hospitalized for 

8 days at a mental health facility. Blimling told the medical 

professionals at the facility that he had ideations about killing 

his stepfather. When he was released from inpatient care, he 

“object[ed]” to coming back to Bridgette’s home because he 

did not want to be around his stepfather. At the time of the 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

evidentiary hearing, Blimling was residing with his maternal grandmother.

Bridgette testified that by the time of the hearing, Blimling 

was being treated by multiple mental health care providers. In addition, he was taking medication to control his 

ADHD and to reduce stress and anxiety. Bridgette testified 

that Blimling’s behaviors have improved since his inpatient 

treatment and that his current outpatient therapy is helping 

Blimling perform at school and at home. In fact, Bridgette 

testified that Blimling is enrolled in high school in Omaha, 

Nebraska; has caught up with all of his credits; and has not 

had any misconduct reports from the school. At the time of 

the hearing, Blimling was ready to begin his junior year of 

high school. Bridgette plans to continue with all of Blimling’s 

current therapeutic services.

Bridgette testified that she considers Blimling to be an 

“immature” 16 year old. She testified that he does not drive, 

does not have a job, and does not have a way of supporting himself.

In addition to the testimony of both of Blimling’s parents, 

multiple exhibits were admitted into evidence at the evidentiary hearing. These exhibits include police reports relating 

to the February 23, 2017, incident; Blimling’s school records 

from prior to February 23; and his mental health records from 

after February 23, including from his inpatient treatment.

Information from the exhibits indicates that Blimling had 

little criminal history. Before February 23, 2017, he had one 

traffic citation for careless driving, which he received on 

February 15. Despite Blimling’s lack of criminal history, his 

school records reflect that Blimling had a pattern of disobeying 

authority figures. These records indicate that Blimling regularly assaulted other students and verbally abused his teachers and the school staff. Examples of Blimling’s behaviors 

at school included the following: urinating on the bathroom 

floor, drawing on the walls, throwing a chair when asked to 

comply with school rules, stabbing another student’s textbook 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

with a pen, using crude language with teachers, and hitting 

other students.

Blimling’s mental health records indicate that he has been 

diagnosed with “disruptive mood dysregulation disorder” and 

ADHD. When Blimling was admitted to the mental health 

facility in April 2017, he reported having suicidal thoughts and 

feeling homicidal toward his stepfather. Blimling also reported 

that when his stepfather had confronted him about not listening to Bridgette, it was Blimling who initiated the physical 

confrontation. He reported that “when he gets angry, nothing 

can bring him back down.” Blimling reported that he was 

using marijuana during this time period. Additionally, Blimling 

reported that prior to February 23, 2017, he was using marijuana on a weekly basis.

When Blimling was released from inpatient treatment, mental health professionals believed his homicidal feelings and 

thoughts had dissolved. However, Blimling continued to struggle. As late as June 2017, Bridgette reported to Blimling’s 

therapist that he was not showing much improvement and that 

he needed to learn “‘to let things go.’” In July 2017, Bridgette 

reported that Blimling was being difficult.

Reports from Blimling’s therapists indicate that Blimling 

has made some progress in therapy since April 2017. He has 

learned skills to help him address his anger. In addition, he 

expressed a desire to keep his anger controlled and expressed 

some regret about what he did to S.S. in February 2017. 

However, Blimling continues to refuse to see his stepfather. 

He has also told his therapists that he is not sure that he can 

apply his coping skills if “a huge conflict or cris[i]s arises.” 

Blimling desires to return to live with Patrick because there are 

“no rules” at Patrick’s house. Blimling indicated that Patrick 

had recently purchased him a dirt bike and was planning on 

purchasing a car for him in the near future.

In its written order denying Blimling’s motion to transfer, 

the district court found, after examining all the relevant factors, that the severity of Blimling’s offenses coupled with his 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

history of disruptive and assaultive behaviors at school and his 

recurring homicidal ideations several months after the current 

offenses would require rehabilitative and security measures 

beyond the period of his minority.

Blimling appeals.

ASSIGNMENT OF ERROR

Blimling contends that the district court erred in denying 

his motion to transfer his case to juvenile court.

STANDARD OF REVIEW

[1,2] 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. We note that in the recently decided case 

of In re Interest of Steven S., 299 Neb. 447, ___ N.W.2d ___ 

(2018), the Nebraska Supreme Court reaffirmed this standard 

of review for cases originally filed in adult court.

ANALYSIS

Jurisdiction

[3] Before reaching the legal issues presented for review, it 

is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. Id. For an appellate court 

to acquire jurisdiction over an appeal, there must be either a 

final judgment or a final order entered by the court from which 

the appeal is taken. Id.

[4] The Nebraska Supreme Court recently held in State v. 

Bluett, supra, that a trial court’s denial of a motion to transfer 

a pending criminal proceeding to the juvenile court was not a 

final, appealable order. That holding has since been statutorily 

overruled by 2017 Neb. Laws, L.B. 11, § 1, which amended 

Neb. Rev. Stat. § 29-1816 (Reissue 2016) to provide that an 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

“order granting or denying transfer of the case from county or 

district court to juvenile court shall be considered a final order 

for the purposes of appeal” and to further provide that, upon 

entry of such an order, “any party may appeal to the Court of 

Appeals within ten days.” In the instant case, Blimling has 

properly perfected his appeal from the district court’s denial 

of his motion to transfer his criminal proceeding to the juvenile court.

Motion to Transfer

to Juvenile Court

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 the juvenile court or in the county or 

district court. In the present case, the charge of attempted first 

degree murder, a Class II felony, and the charge of assault in 

the second degree, a Class IIA felony, against Blimling put him 

within this category of juvenile offenders.

When an alleged offense is one over which both the juvenile court and the criminal court can exercise jurisdiction, a 

party can move to transfer the matter. For matters initiated in 

criminal court, a party can move to transfer it to juvenile court 

pursuant to § 29-1816(3).

In the instant case, when Blimling 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 
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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 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.

[5] 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 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

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 issued a detailed 10-page 

order explaining its consideration and weighing of the various factors set forth in § 43-276. In the order, the court 

found that Blimling’s actions on February 23, 2017, were 

premeditated and clearly showed that Blimling “had homicidal thoughts before, during, and subsequent to his action of 

running over his ex-best friend with a motor vehicle.” In fact, 

the court found that Blimling desired to seriously harm S.S. 

and was disappointed that S.S. only suffered minor injuries. 

The court also found that in the months since Blimling ran 

over S.S., he had exhibited homicidal thoughts toward his 

stepfather. The court stated, “The two incidents show a troubling violent pattern.” The court also stated, “The evidence 

of premeditation and lack of remorse after both incidents is 

somewhat alarming.”

In its order, the district court acknowledged that Blimling 

had been undergoing therapy with multiple mental health 

professionals for more than 3 months prior to the evidentiary 

hearing. However, the court found that the mental health 

notes submitted into evidence “did not reflect substantial 

improvement in [Blimling’s] malevolent thought process.” The 

court stated:

The Court has a concern that a successful mental 

health regimen may very well require treatment beyond 

[Blimling’s] nineteenth birthday — especially in light of 

homicidal ideation against not only the victim in this case 

but [Blimling’s] stepfather as well as the actions taken to 

fulfill the homicidal ideation against the victim.

The court indicated that Blimling did not have a criminal history. However, he did have a pattern of behavioral 

issues and a lack of respect for others which was evidenced 

by his school records. This history of behavioral issues at 

school coupled with Blimling’s homicidal ideations and lack 
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STATE v. BLIMLING

Cite as 25 Neb. App. 693

of remorse “indicates that the safety of the public could be in 

jeopardy until [Blimling] has successfully completed mental 

health therapy.”

Ultimately, the court found that multiple factors set forth 

in § 43-276 weighed in favor of retaining jurisdiction of the 

case in district court, including the treatment options available 

to Blimling, Blimling’s motivation for committing the current 

offenses, the violence associated with Blimling’s offenses, 

Blimling’s current age and the potential length of required 

treatment, Blimling’s best interests, the consideration of public 

safety, and Blimling’s ability to appreciate the nature and seriousness of his conduct. Based on its consideration of these factors, and all of the factors delineated in § 43-276, the district 

court refused Blimling’s request to transfer the proceedings to 

the juvenile court.

In this appeal, Blimling challenges the weighing process 

employed by the court in reaching its decision. He argues that 

the court placed too much weight on the nature and circumstances of the offenses and too little weight on his “age, immaturity, lack of criminal history, and treatment efforts.” Brief for 

appellant at 7. He also argues that the court erred in finding 

that he would require treatment beyond the age of 19.

In our review of the record, we find support for the district 

court’s finding that Blimling will require treatment beyond 

his 19th birthday. Blimling was already 16 years old at the 

time of the evidentiary hearing. The evidence reveals that he 

suffers from serious mental health issues which are not yet 

adequately controlled through medication or through therapeutic intervention. Perhaps because of these mental health 

issues, Blimling has demonstrated a pattern of violent, aggressive, and offensive behavior at school, in the community, and 

at home. The evidence strongly suggests that Blimling will 

likely need treatment for more than the 21⁄2 years he has left 

before he reaches the age of majority.

[6] In our review, we do not consider lightly Blimling’s 

youth or his lack of any criminal history. However, much like 
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the district court, we cannot ignore the violent and disturbing nature of Blimling’s crime, his lack of remorse, or his 

continuing anger and homicidal ideations. We further cannot 

ignore that the events for which Blimling has been charged 

are not isolated given the history of assaultive and disruptive 

behavior noted in his school records and the separate incident 

wherein Blimling, who was driving a car, followed another 

student and then made a threatening statement. 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). Because there is ample evidence to support each of the 

findings which led the district court to deny Blimling’s motion 

to transfer, we cannot and do not conclude that it abused 

its discretion.

CONCLUSION

For the reasons discussed, we conclude that the district court 

did not abuse its discretion in denying Blimling’s motion to 

transfer his case to juvenile court. As such, we affirm.

Affirmed.