State v. Moreno

Citation947 N.W.2d 330,28 Neb.App. 581
Decision Date30 June 2020
Docket NumberNo. A-20-067.,A-20-067.
Parties STATE of Nebraska, appellee, v. Anthony MORENO, appellant.
CourtCourt of Appeals of Nebraska

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

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

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.

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 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...

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