Date: 09-29-2020

Case Style:

Case Number: A-20-409

Judge: David Arterburn

Court: NEBRASKA COURT OF APPEALS

Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Siobhan E. Duffy

Defendant's Attorney:

Description: Omaha, NE, Criminal Defense Attorney, assault in the first degree, use of a deadly weapon to commit a felony

A criminal complaint was filed in the county court on September 26, 2019, charging Erwin
with assault in the first degree, a Class II felony, and use of a deadly weapon to commit a felony,
a Class IC felony. The case was bound over to the district court on October 18. On October 31,
Erwin filed a motion to transfer the case to juvenile court.
- 2 -
On March 6, 2020, the district court held a hearing on Erwin’s motion to transfer. We note
that the report of Erwin’s primary witness, Dr. Colleen Conoley, was completed on February 26,
2020. Therefore it appears that the almost 4-month delay from the filing of the motion until the
hearing was due to the time taken for Conoley’s report to be completed. At the hearing, the State
offered exhibits 1 through 5, which were admitted into evidence. Those exhibits included police
reports pertaining to the underlying charges, a DVD recording of Erwin’s interview with the
Omaha Police Department, police reports detailing a prior contact of Erwin with law enforcement,
a juvenile intake summary, and an e-mail from an Omaha police detective regarding contact with
the victim about potential participation in restorative justice. Erwin offered exhibits 6 and 7, which
were admitted into evidence. These exhibits included the evaluation report authored by Conoley
regarding the transfer motion and her curriculum vitae. Erwin also offered testimony from Conoley
and Melissa Driscoll, the juvenile court coordinator for the Douglas County Public Defender’s
office.
Erwin’s record of arrest shows that he was born in December 2002. He was 16 years and
9 months old at the time of the present offense and 17 years and 3 months old at the time of the
hearing. His prior criminal history included shoplifting in December 2017. For this charge, he
received a letter for diversion and according to Conoley’s report, completed a diversion program.
He had no other criminal record.
Police reports admitted into evidence at the hearing on Erwin’s motion to transfer describe
the present offense as a narcotics sale that turned violent. ShotSpotter, a system that uses a network
of audio sensors to detect the location of a gunshot, was activated on September 23, 2019,
indicating two rounds had been fired. Officers were dispatched to the area of 4001 North 42d
Street. When the responding officers arrived, they learned that the victim, K.H., had already been
transported by a private vehicle to the hospital.
There were several witnesses to the incident including the victim, his friend, and several
bystanders. Erwin and his codefendant, J.J., have not provided statements regarding the events
resulting in the charges. According to the police reports, witnesses reported that they saw two
black males approach K.H.’s car. One of the black males, later identified as Erwin, was described
as “chunky,” and the other suspect, later identified as J.J., was skinnier and shorter. There was a
chase involving K.H. and the two black males. K.H. and the two black males ran beside a car and
cut in front of it. The majority of the witnesses that were not directly involved in the incident
reported that K.H. was chasing the other two individuals, later identified as Erwin and J.J.
Eventually K.H. tackled Erwin. One witness stated that one of the suspects tackled K.H. At that
point, one of the suspects shot K.H. twice. There was conflicting testimony as to which of the
suspects shot K.H. According to the witnesses, Erwin who under these accounts had been tackled
by K.H. either shot K.H. himself or tossed the gun to J.J., who then shot K.H. K.H. himself
ultimately reported that Erwin tossed the gun to J.J. who then shot him after being instructed to do
so by Erwin. (He had earlier indicated while intubated in the hospital that Erwin shot him.) After
K.H. was shot, Erwin and J.J. ran back to K.H.’s car and fled the scene. The car was ultimately
recovered several blocks away.
After the shooting, one witness urged K.H. to get into the car. She moved one of her
children to the front seat of the car and removed the car seat. When K.H. got into the car, she pulled
- 3 -
up his shirt where she saw one gunshot wound. She looked for something to apply pressure to the
wound. Her boyfriend then drove K.H. to the hospital in her vehicle.
Police made contact with one of K.H.’s friends, D.W., who was present with him just
before and at the scene of the shooting. D.W. identified J.J. as one of the suspects because he knew
J.J. from attending Omaha Benson High School with him. He identified Erwin as the other suspect
through a Facebook post. D.W. reported to police that K.H. was attempting to sell approximately
$20 worth of marijuana to J.J. and Erwin. J.J. got into the car with K.H. and D.W. J.J. grabbed the
marijuana without paying K.H. and accompanied by Erwin ran from the car. K.H. and D.W. chased
J.J. and Erwin on foot. D.W. stated that K.H. tackled Erwin and then Erwin took out the gun from
his fanny pack and shot K.H.
K.H. was shot twice, once in the upper right stomach area and the other in the upper left
abdomen. K.H. was admitted to the hospital where surgery was performed immediately. His
injuries included a hole in his diaphragm, a wound to his liver, a collapsed right lung, a left iliac
vein injury, broken ribs, and multiple wounds to his small bowel and colon. While recovering from
the surgery, he suffered from kidney failure and was on dialysis. Ultimately, one of his legs was
amputated. On October 3, 2019, the police were notified that K.H. had swelling on the brain after
suffering a seizure during his surgery to have his right leg amputated and his internal organs
repaired. The police spoke with the doctors who were concerned that K.H.’s swelling on his brain
would lead to significant impairment or death. K.H. ultimately recovered to a point where he could
be fully interviewed. The police interviewed him at Madonna Rehabilitation Hospital in
November. At that time, K.H. identified J.J. as the person who shot him and Erwin as the one who
provided the gun after being tackled.
On September 26, 2019, an arrest warrant was issued for Erwin on charges of first degree
assault and use of a weapon to commit a felony. A search warrant was executed at Erwin’s
residence but he was not found. Erwin’s mother stated that she had not seen Erwin in a couple of
days. Erwin and J.J. were arrested on October 4, while walking. After being arrested, Erwin was
advised of his rights by the police. He noted that he did not want to talk to the police and he wanted
a lawyer.
When Erwin was taken into custody, a probation officer completed a Nebraska Juvenile
Intake Summary, including an interview with Erwin’s mother, Toya Walker. The juvenile intake
summary indicated that Erwin was in the 10th grade at the time of his arrest. The summary
indicated that Erwin previously had received diversion for a shoplifting charge, but had no other
criminal record. Walker stated Erwin has never been arrested. She explained that Erwin moved to
Texas for 2 years to live with his father but had moved back to Omaha, Nebraska. While they used
to live in a different neighborhood in West Omaha, they had recently moved to their current
neighborhood at 45th Street and Ames. She noted that the kids in this new neighborhood were
gang affiliated and negatively influenced Erwin. She indicated that Erwin used to only stay home
and play video games but now he has been making choices that are not good for him. She stated
that Erwin’s school behavior and academics have been declining and he has been skipping school
with his new friends. She said that she has been getting calls from the school about truancy and
was considering moving Erwin to Boys Town day school or something similar to help him make
better academic decisions. Erwin denied using substances to her.
- 4 -
The probation officer also completed an interview with Erwin. Erwin said that his friends
are the same age as him and that they are good influences on him. He denied gang affiliation. He
indicated that he attends school every day unless he is sick. Erwin told the probation officer that
he “did not know” if he used substances. A screening risk assessment was completed by the
probation officer. According to this risk assessment, Erwin was recommended for secure detention
with the Douglas County Youth Center (DCYC). He has remained in custody at DCYC throughout
the pendency of this case.
Erwin was referred for an evaluation to be conducted by Conoley, a neuropsychologist.
Conoley specializes in child behavior and modification in the field of child and adolescent
neuropsychology. Conoley testified that she met with Erwin in four different sessions across 3
days which included the administration of psychological tests and structured interviews. Conoley
also interviewed Erwin’s mother, Walker, and spoke with Erwin’s counselor at DCYC. Conoley
reviewed school records for Erwin including his official transcript, daily attendance detail,
behavior detail report, counseling contact log, student observation, and special education records.
Conoley reviewed various Omaha Police Department records and medical and behavior records
from DCYC. There is no indication in the record that Conoley questioned Erwin regarding the
events of September 23, 2019.
Conoley diagnosed Erwin with a mild neurocognitive disorder and cannabis use disorder.
According to Conoley, Erwin’s IQ is 79, which would fall in the very low range. Conoley also
testified that Erwin suffers from Erb’s Palsy. This condition is manifested in his left arm being
noticeably smaller than his right arm. In addition, Erwin’s movement of his left arm and hand is
extremely limited.
According to Conoley, Erwin has not been prescribed any psychiatric medications nor has
he been previously diagnosed with a mental health disorder. Outside of his time at DCYC, he has
never undergone counseling or psychotherapy. However, he has been willing to meet with DCYC
counselors. Conoley found that particularly during the 2019 school year leading up to the offense,
instead of being in school, Erwin was typically smoking marijuana and playing video games. She
testified that Erwin’s perception of his use of marijuana includes his belief that while he’s smoking
marijuana, he remains calm, thinks clearer, has a better memory, and does much better.
Conoley’s reports included additional discussion of criminal history. Erwin was ticketed
for shoplifting but was given the opportunity to participate in and complete a diversion program.
While at DCYC, he has been written up for two rule violations but these rule violations did not
result in an injury. He reported a fight in DCYC where another detainee had been making
comments about his sister and then Erwin hit the other detainee.
Erwin told Conoley that he was jumped into the 29th Street gang when he was 13 years
old, but declined to declare a current gang affiliation. The counselor at DCYC reported that Erwin
has a gang affiliation but the counselor also did not know what it is. Conoley opined that Erwin
does not demonstrate signs of strong affiliation or loyalty to gang membership.
Erwin was reported for a number of various behavioral problems throughout his school
career. In third grade, he made inappropriate comments about bringing a shotgun to school, he
wrestled with another student resulting in a punishment of in-school suspension, and on a separate
occasion he was cited for fighting and holding his hand like a gun. In fourth grade, he was cited
- 5 -
for being rude and disrespectful. In fifth grade, he was cited for not keeping his hands to himself
and for repeatedly creating disruptions in classes where he was disrespectful to teachers. In sixth
grade, he was cited for bullying, threatening another student that he would “have his house shot
up,” and for being disrespectful to teachers. In seventh grade, he had 29 behavioral reports for his
school behavior. The majority of these reports were due to disruptive or disrespectful behavior
toward adults or others. In eighth grade, he had 9 reports that were generally for insubordination.
In ninth grade, he had six reports regarding his refusal to work during class and avoidance of work.
At the time of his arrest, Erwin was attending Central High School where he was in the 10th grade
and had a 0.2222 cumulative GPA. Up to the date of the offense Erwin had missed almost every
day of classes. He was also cited for roaming the halls and not attending class. He was suspended
for 3 days. Despite the numerous behavioral issues in school including past aggressive acts toward
students and teachers and the present charge, Conoley reported that the tests she administered
nonetheless placed Erwin within the low range for risk for dangerousness when compared to other
juvenile offenders.
Conoley testified that Erwin would most likely be amenable to structured evidence-based
programs specifically targeting school achievement, marijuana use, and gang affiliation.
Specifically, she recommended that Erwin would need school intervention to adapt curriculum to
his needs. He would also need to be referred to a neurologist to address his memory deficits. He
would require individual therapy with a Cognitive Behavior Therapist with specialized training in
substance abuse and that an emphasis would be needed on motivational interviewing. This would
require additional education and would be completed in about 22 weeks.
Conoley testified that the motivation for Erwin’s commission of the offense was escape,
avoidance, or self-protection. This trait was also manifested in his history of doing everything he
could to avoid work in school and to avoid and escape conflict. However, during
cross-examination, she conceded that she did not talk to Erwin about his underlying motivation
for the commission of the offense. She also conceded that any ultimate success for treatment would
depend on Erwin’s compliance and cooperation with any programs or counseling that was
recommended for him. Finally, she acknowledged that in her past evaluations of juvenile
offenders, she had never recommended that a case be retained in district court. According to
Conoley, Erwin appreciated the nature and seriousness of the conduct. She also opined that Erwin
is a low risk to the community and is a much greater risk to himself.
On May 28, 2020, the district court entered its order denying Erwin’s motion to transfer.
The court reviewed the considerations under Neb. Rev. Stat. § 43-276 (Reissue 2016) for
transferring a case to juvenile court. The court noted that there was no mathematical formula to
measure or weigh each criterion but rather it was to engage in a balancing test to balance the
protection and security of the public against the practical rehabilitation of the juvenile. The court
found that the offenses clearly involved violence, including the use of the firearm and that the
injuries suffered by the victim were gravely serious, potentially deadly, and life-altering. The court
then considered the threat to public safety from this type of “unnecessary violence.” The court
found that the motivation for the crimes was adult in nature and Erwin displayed an escalating
criminal propensity. The court also found that it was questionable whether Erwin would avail
himself of the benefits and services offered in the juvenile court because he demonstrated a
- 6 -
repeated pattern of noncompliance with educators and staff in middle school and high school. The
court found that it was in the best interests of Erwin and society to require detention or supervision
of Erwin beyond what the juvenile court could provide for him. The court concluded that, given
the serious nature of the offenses, Erwin’s sophistication, age, maturity, and the security of the
public, the juvenile system would be inadequate to address his needs. Erwin appeals.
ASSIGNMENT OF ERROR
Erwin assigns that the district court erred when it found that the State established a sound
basis to retain the matter in the district 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 against
Erwin 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 Neb. Rev. Stat. § 29-1816(3)
(Reissue 2016).
In the instant case, when Erwin 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 § 43-276:
(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
- 7 -
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.”
§ 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.
Following our review of the record, we cannot find that the district court abused its
discretion in denying Erwin’s motion to transfer the case to juvenile court. The district court’s
order clearly demonstrates that it paid appropriate attention to the relevant statutory considerations.
In particular, the court considered Erwin’s previous history, including whether he would
participate in treatment offered to him through the juvenile court. The court noted that Erwin
demonstrated a repeated pattern of noncompliance with educators and staff in school. The court
paid special notice to the fact that Erwin stopped attending high school and was spending his days
smoking marijuana. The court also noted that Erwin was initiated in a gang. Erwin was 16 years
and 9 months old at the time of the shooting and was 17 years and 3 months old at the time of the
hearing on the motion to transfer. Even if the juvenile court case proceeded at an expeditious pace
to disposition it is likely that Erwin would only be immersed in rehabilitative programs for more
than 15 months. Erwin’s history of resistance to and avoidance of needed education and correction
gives cause for concern whether he will avail himself of needed services and programming. Given
the short amount of time for the juvenile court to work with him, the violence involved in Erwin’s
act, and his prior inability to participate in school and other services, the record supports the district
court’s finding that further efforts to rehabilitate Erwin in the juvenile court is unlikely to be
successful.
The court also paid close attention to the violence of the offense and carefully considered
how best to promote public safety. Erwin was apprehended after participating in a narcotics sale
that resulted in unnecessary violence. K.H. suffered life threatening wounds to multiple organs
and has lost one of his legs as a result. He was hospitalized and unresponsive for a significant
period of time. His recovery required time spent in a rehabilitation hospital to help him learn to
cope with the lifelong implications of his injuries. The court understandably considered the
violence in this case as completely unnecessary. According to the evidence, Erwin brought a gun
- 8 -
to a sale of a $20 bag of marijuana. He participated in the theft of the bag. Then when K.H. gave
chase and caught Erwin, he either shot K.H. himself or provided the gun to J.J. with instructions
to shoot K.H. Then he escaped in K.H.’s vehicle. We recognize that factors exist which would
support transfer of the case to the juvenile court. For example, Erwin has no significant criminal
history. However, the district court balanced these factors against those which support retention of
the case in adult court.
The court considered all other required statutory factors. The court noted that Erwin’s
criminal behavior was escalating from shoplifting, marijuana use, and truancy to a dangerous and
violent act.
Based on this record we cannot find that the district court abused its discretion by retaining
this case in the district court. The court was tasked with balancing public safety and security against
the rehabilitative needs of Erwin. This balance requires a thoughtful consideration of the relevant
statutory factors. The district court conducted and enunciated this thoughtful analysis, ultimately
concluding that the case should be retained in the district court.

Outcome: For the reasons discussed above, we find that the district court did not abuse its discretion in refusing to transfer Erwin’s case to juvenile court, and thus, we affirm.

Plaintiff's Experts:

Defendant's Experts:

Comments: