State v. Huynh

STATE OF NEBRASKA, APPELLEE, v. DUSTIN K. HUYNH, APPELLANT.

No. A-18-1157.

NEBRASKA COURT OF APPEALS

May 7, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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 Lancaster County: ANDREW R. JACOBSEN, Judge. Affirmed.

Joe Nigro, Lancaster County Public Defender, and Matthew F. Meyerle for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

PIRTLE, BISHOP, and ARTERBURN, Judges.

PIRTLE, Judge.

INTRODUCTION

Dustin K. Huynh, a juvenile, was charged in the district court for Lancaster County with four felonies. He filed a motion to transfer the case to juvenile court, which was denied. Huynh appeals the denial of the motion to transfer. Based on the reasons that follow, we affirm.

BACKGROUND

On August 23, 2018, the State filed an information charging Huynh with count I, possession of a firearm while in violation of Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2018), to wit: did knowingly or intentionally manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance (marijuana); count II, possession of money to be used to facilitate a violation of § 28-416(1); count III, possession of a controlled substance (Alprazolam); and count IV, possession of a controlled substance(Tetrahydrocannabinol (THC)). Huynh was born in April 2001 and was 17 years old at the time the alleged offenses were committed.

The charges stem from a traffic stop on July 22, 2018. Lincoln Police Officer Wagner stopped a vehicle for speeding. Wagner approached the vehicle and made contact with the occupants which included the driver, a passenger in the front seat, who was identified as Huynh, and a rear seat passenger. Wagner learned that the vehicle belonged to Huynh. During his contact with the individuals, he observed a strong odor of burnt marijuana coming from the vehicle. Wagner asked to search the vehicle and the driver disclosed that the group had smoked from a blunt earlier that he would find in the center cupholder area of the vehicle. He observed that the cupholder area contained numerous marijuana roaches. He also observed a black digital scale in plain view near the cupholders. The scale was later found to contain marijuana residue.

Prior to the search of the vehicle, Lincoln Police Officer Elgan arrived on scene. Wagner and Elgan asked the occupants to exit the vehicle and Elgan made contact with Huynh on the passenger side of the vehicle. He observed a strong smell of marijuana emanating from the vehicle's interior. As Huynh got out of the vehicle, Elgan asked him where he would find marijuana inside the vehicle and Huynh told him there was marijuana in the passenger side door. Elgan asked Huynh if it was his marijuana and Huynh indicated that it belonged to the driver.

When the officers searched the vehicle, Elgan began the search with the front passenger compartment area. In the front passenger door pocket he located three separate plastic sandwich baggies. One of the baggies contained 20.4 grams of marijuana, another one contained 2.6 grams of marijuana, and the third one contained three pieces of THC wax weighing 4.8 grams. During a further search, Elgan opened the glove compartment which was directly in front of where Huynh had been sitting, and he found a Smith & Wesson 9-mm handgun. The gun had a loaded magazine with seven rounds, but no round in the chamber. Police later discovered that the gun had been reported stolen. Huynh's driver's license was also located in the glove compartment. At that point, Huynh was placed under arrest. He stated to the officers, "I'm 17 doing dumb shit." Huynh was searched and the officers found $176 of suspected narcotic sale proceeds crumpled up in his pockets. The money was in varying denominations as if it was secured through numerous transactions.

The police officers also discovered two other baggies of marijuana, weighing 44.1 grams and 7 grams, in the center console within reach of both Huynh and the driver. A storage area near the center console directly between where Huynh and the driver were sitting contained a yellow pill that was identified as Alprazolam, a schedule IV narcotic. A search of the driver's purse found another baggie with 5.5 grams of marijuana and $160 in cash that was wadded into her wallet. Wagner stated in his report that based on his training and experience, the total amount of marijuana, packaging of various amounts, money, scale, and firearm possession was consistent with that of narcotic sales and distribution.

The driver of the car told police that she knew Huynh was a drug dealer and that was the reason he had the firearm. She stated that Huynh had shown her the firearm less than 24 hours prior to the traffic stop. She also said the group had knowingly been selling narcotics earlier that evening, and she estimated the group had made three deliveries.

The driver also subsequently consented to a search of her cell phone after she admitted that she was using her Snapchat account to post photographs of the drugs in order to help Huynh sellthem. The search revealed that her Snapchat account had photographs and videos of the THC Wax, fresh marijuana in baggies like those located in the vehicle, and a bottle of prescription cough syrup. Police also obtained information from Huynh's phone. Both phones had pictures and videos showing Huynh smoking what appeared to be marijuana and displaying the firearm found in the car. Both phones also contained messages between Huynh and the driver about selling narcotics, and there were messages on Huynh's phone between him and other individuals in regard to him selling narcotics.

Huynh filed a "Motion to Waive Jurisdiction to the Separate Juvenile Court of Lancaster County, Nebraska" and a hearing was held on the motion. The State offered five exhibits into evidence. Exhibits 1 and 2 were police reports authored by Wagner and Elgan, respectively, describing the incident and investigations related to the charges against Huynh. Exhibit 3 was a police report authored by the police officer who examined Huynh's cell phone; Exhibit 4 was another police report authored by Wagner describing the information found on Huynh's and the driver's cell phones; and Exhibit 5 was Huynh's Detention Authorization, and Juvenile Intake Summary.

Huynh offered testimony from two witnesses, as well as two exhibits. Huynh's first witness was Ryan Dvorak, a supervisor with the Lancaster County Human Services' Pre-Adjudication Office. He testified that he supervises juveniles prior to adjudication. He also had been a juvenile probation officer for 14 years. Dvorak testified that he had not had any professional contact with Huynh prior to this case and had not heard his name associated with gang activity in the monthly meetings he attended with the Lincoln Police Department's gang unit. He testified that Huynh had no prior criminal history or juvenile adjudications. He also testified that he reviewed the police reports from the case and there was no evidence that the offense included violence or that the firearm was used. Huynh's mother told Dvorak she had mental health and substance abuse concerns about Huynh which needed to be addressed. Dvorak noted that Huynh was a good student, was on track to graduate, and had no school-related behavioral concerns aside from recent truancy issues. He also testified Huynh told him that in November 2017, he started going through a depressive state, and that over time, he became less interested in school which led to more truancies.

Huynh then offered exhibit 6, a certified copy of a case file from a juvenile adjudicated in Lancaster County Juvenile Court on similar charges in 2017. Dvorak had supervised the juvenile when he was a probation officer. The exhibit was offered for the purpose of showing the Juvenile Probation Office has the ability to supervise youth who are adjudicated on firearms offenses.

Huynh's second witness was Amy Champoux, a juvenile probation supervisor who oversees probation officers with high-risk juvenile cases, including youth adjudicated for firearms offenses. Champoux agreed with Dvorak that Huynh had no previous involvement with juvenile probation or any prior adjudications.

Champoux testified regarding the levels of juvenile probation supervision, including therapeutic in-home services such as intensive family preservation or multisystemic therapy, which are not utilized by adult probation. She testified that the levels of out-of-home placements include foster homes, group homes, treatment group homes, psychiatric residential treatment facilities, and the Youth Rehabilitation and Treatment Center. She stated that placement in a group home lasts an average of 9 months and that placement in treatment group homes is usuallylonger--up to a year. Placement at the Youth Rehabilitation and Treatment Center is usually 6 to 12 months for boys. Champoux further testified about the consequences that can result if a juvenile is not successful or not compliant with the terms of probation.

She testified that at the time of the hearing, Huynh was 17 years old, and had an April birthday, which meant juvenile probation would have about 18 months to rehabilitate and treat Huynh. When asked if 18 months was enough time for juvenile probation's services to be successful, Champoux replied "[s]ometimes, yes." She also indicated that none of the services she testified about take longer than 18 months to complete. On cross-examination, Champoux testified that when a juvenile turns 19 years old, juvenile probation's involvement ends, regardless if further time was needed to complete treatment.

Finally, Huynh offered exhibit 7, a psychosocial history of Huynh prepared by a social worker with the Lancaster County Public Defender's...