State v. Blimling

25 Neb.App. 693

911 N.W.2d 287

STATE of Nebraska, appellee,

v.Seth Ehren BLIMLING, appellant.

No. A-17-1079.

Court of Appeals of Nebraska.

Filed March 27, 2018.

Timothy S. Noerrlinger for appellant.

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

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 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 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...