State v. Garcia, 011921 NECA, A-20-624

Docket Nº:A-20-624
Opinion Judge:PIRTLE, CHIEF JUDGE
Party Name:State of Nebraska, appellee, v. Dillen C. Garcia, appellant.
Attorney:Gerard A. Piccolo, Hall County Public Defender, for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
Judge Panel:Pirtle, Chief Judge, and Riedmann and Arterburn, Judges.
Case Date:January 19, 2021
Court:Court of Appeals of Nebraska

State of Nebraska, appellee,

v.

Dillen C. Garcia, appellant.

No. A-20-624

Court of Appeals of Nebraska

January 19, 2021

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).

Appeal from the District Court for Hall County: Andrew C. Butler, Judge. Affirmed.

Gerard A. Piccolo, Hall County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

Pirtle, Chief Judge, and Riedmann and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, CHIEF JUDGE

INTRODUCTION

Dillen C. Garcia appeals from an order of the district court for Hall 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, we affirm.

BACKGROUND

On April 20, 2020, the State filed an information in district court charging Garcia with first degree assault on a peace officer, a Class ID felony, and obstructing a peace officer, a Class I misdemeanor. Garcia subsequently filed a motion to transfer the case to juvenile court.

A hearing was held on the motion to transfer. Grand Island Police Officer Bradley Brooks testified that on February 16, 2020, he responded to a call regarding gunshots fired and a kidnapping. When he arrived at the reported location, Garcia's mother was outside waving the officers down, and she advised them she heard gunshots and saw a green vehicle take off with Garcia in the vehicle. While Brooks was speaking with Garcia's mother, she received a phone call from Garcia and Brooks spoke with Garcia on the phone. Garcia refused to provide his location to Brooks. About 15 minutes later, Garcia arrived back home. Brooks spoke with Garcia about what had happened and advised him that because he was currently on probation and he had contacts with the police earlier the same day, Brooks was going to have his supervisor come to the scene to decide what to do with Garcia. Brooks asked Garcia to sit in his patrol vehicle until his supervisor arrived, and as they began walking to the vehicle, Garcia started running in an apparent attempt to flee the scene. Brooks chased after him and tackled Garcia to the ground. Garcia refused to comply with Brooks' commands to put his hands behind his back and resisted being subdued. Garcia struck Brooks twice in the head with his fist and then managed to free his leg and kicked Brooks in the face, causing Brooks to fall backward. Garcia was able to get away and tried to flee again but Brooks tackled him to the ground again. Garcia continued to be physically uncooperative until another officer arrived and deployed his Taser. Garcia was then put in handcuffs and placed under arrest.

Following the confrontation, Brooks experienced severe pain in his face and lower back. He sought medical treatment and was diagnosed with a contusion to the left side of his face and a back sprain. Brooks testified that he continues to suffer from back pain and has received multiple epidural and lidocaine injections and that surgery is a possibility.

Garcia was 15 years' old at the time of the incident and was 16 years' old at the time of the hearing on the motion to transfer.

Prior to the incident on February 16, 2020, Garcia had contact with law enforcement earlier the same day as a result of being involved in stealing items from vehicles. Garcia's juvenile court history includes five previous adjudications for the following offenses: disturbing the peace--fighting; theft by unlawful taking; theft by unlawful taking; third degree assault; and disturbing the peace--fighting. He was placed on juvenile probation for each of the above offenses. He also had seven pending matters in juvenile court at the time of the hearing, all filed between December 3, 2019 and March 4, 2020. Copies of Garcia's juvenile court records from his past adjudications, as well as court files from the active cases, were entered into evidence.

As previously indicated, Garcia was on probation at the time of the offenses at issue. Kimberly Hughes, a high risk juvenile probation officer, testified that she began supervising Garcia in December 2019, but juvenile probation had been involved in supervising Garcia since July 2017. She testified that Garcia has been provided services meant to rehabilitate a juvenile with violent tendencies. The services included electronic monitoring, tracking, therapy, Aggression Replacement Training (ART) and Moral Reconation Therapy (MRT). He had completed ART, and participated in MRT, but did not complete it. Garcia has regularly tested positive for marijuana. His therapy was terminated because he would not cooperate or communicate with the therapist.

Hughes testified that when Garcia is confronted or questioned about something, he gets angry and leaves, which he had done at various meetings. She also testified that Garcia's violence is escalating from fighting peers at school to fighting a police officer, which she found concerning.

Hughes testified there are no other services juvenile probation can provide Garcia that would deal with his violent tendencies. She said that juvenile probation is unable to effectively supervise Garcia. It has exhausted all community-based efforts to keep him in the home. He had been noncompliant with juvenile probation and Hughes believed he would continue the same pattern of noncompliant behavior. The next level of treatment for Garcia would be a residential treatment facility or a group home. Hughes testified, however, that group homes tend to deny placement of individuals with aggressive and/or violent behaviors. The only treatment facilities are the Youth Rehabilitation Treatment Center and Hastings Regional Center. Hughes stated that the Department of Corrections has some of the same programming available for violent juvenile offenders as juvenile probation, such as ART, MRT, and schooling, but it also has some clinical programs that juvenile probation does not have.

The State also presented evidence in the form of testimony from Hastings Police Officer Cale Neelly and police reports of Garcia's involvement in a shoplifting and stabbing incident that occurred on August 23, 2019. Garcia objected to the admission of this evidence, which was overruled. The evidence showed that during the evening on August 23, two juveniles shoplifted a bottle of alcohol from a local grocery store and ran out of the store. Later, a grocery store employee saw the two suspects, later identified as Garcia and Niko S., jumping a fence and going into a neighbor's backyard. The employee confronted the suspects who started running, and the employee chased after them. The employee caught up to them and grabbed Garcia. Niko, who was holding the bottle of alcohol in one hand, punched the employee with his other hand. Garcia then pulled out a knife and asked the employee, "Do you want to get stabbed?" Niko then stabbed him. The employee was certain Niko was the one who stabbed him and he described the knife as silver and about 3 inches long.

The next day, on August 24, 2019, a vehicle was stopped by law enforcement and Garcia was an occupant of the vehicle. He was found to be in possession of a silver knife. When interviewed at the police department, Garcia told Neelly that he was present during the shoplifting, but was not the one who stole the bottle of alcohol. Garcia also provided details about what happened after the shoplifting. He told Neelly that he was present during the stabbing of the grocery store employee, but was not the one who stabbed him. When asked about the knife found on him during the traffic stop, Garcia stated that Niko asked him to hold onto a knife for him, but he did not know if it was the weapon used in the stabbing.

The State also presented evidence of Garcia's gang affiliation. There was testimony from Grand Island Police Officer Wesley Tjaden that there were photos on social media of Garcia wearing clothing associated with a certain gang, flashing a gang hand sign, and appearing in some photos with other documented gang members. Tjaden testified that Garcia met six of the eight criteria to be documented as a gang member, and the Grand Island Police Department has documented him as a gang member. Garcia also admitted to Neelly that he was a gang member.

There was also evidence of Garcia's unauthorized possession of firearms based on social media messages, videos, and photographs downloaded from his phone.

Following the State's evidence, Garcia presented testimony from three family friends who knew Garcia before and after his father's death. Each witness testified that they observed a change in Garcia in the...

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