State v. Ramirez

STATE OF NEBRASKA, APPELLEE, v. ISIAH M. RAMIREZ, APPELLANT.

No. A-20-674.

NEBRASKA COURT OF APPEALS

February 16, 2021

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 Scotts Bluff County: LEO P. DOBROVOLNY, Judge. Affirmed.

Sterling T. Huff, P.C., L.L.O., for appellant.

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

PIRTLE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.

RIEDMANN, Judge.

I. INTRODUCTION

Isiah M. Ramirez appeals the order of the district court for Scotts Bluff County denying his motion to transfer his case to the juvenile court. Although Ramirez requests that we consider events that transpired after his appeal was filed and the State raises an issue regarding whether the juvenile court would have had jurisdiction to accept a transfer, we conclude that the determinative issues before us are those raised by Ramirez' assigned errors: did the district court err in denying the motion to transfer and did the district court violate Ramirez' constitutional rights. We find that it did not and therefore affirm.

II. BACKGROUND

The charges against Ramirez arise out of an incident that occurred on August 22, 2019. Ramirez was 17 years of age at the time, having been born in October 2001. According to an affidavit attached to the complaint, on that date Ramirez engaged in nonconsensual sexual intercourse with a 13-year-old girl, A.M., who represented herself to be 16 years old, and he recorded the encounter. Thereafter, Ramirez allegedly forwarded A.M. a copy of the video recording.

The State filed a complaint against Ramirez on August 6, 2020, in the county court, charging him with first degree sexual assault, incompetent, a Class II felony; unlawful distribution of an intimate image, a Class IIA felony; and possession of child pornography under age 19, a Class IV felony. He was bound over to district court for trial. On August 14, Ramirez filed a motion to transfer his case to juvenile court and a hearing was held on September 8.

At the hearing on the motion to transfer, the State offered evidence of Ramirez' prior criminal history which consisted of two speeding tickets and a failure to yield citation. The evidence revealed that he graduated high school in June 2020, shortly before the charges were filed against him. He was employed on a full time basis.

Investigator Rob Kiesel of the City of Scottsbluff Criminal Investigation Department investigated A.M.'s allegations. Kiesel testified at the hearing that A.M. was 13 years old at the time of the incident but had posted on social media that she was 16 years of age. She was a runaway at the time, having been removed from her biological parents and placed in foster care, from which she absconded. Once she was returned to her foster parents, they confiscated her cell phone and discovered several sexually explicit conversations and videos, which prompted them to report it to law enforcement. That led law enforcement to execute search warrants on A.M.'s cell phone records. Based upon the information received, a forensic interview was conducted in October 2019.

A.M. disclosed being sexually assaulted by three individuals on August 21 and 22, 2019, including one named "Isiah," although she did not know his last name. She alleged that Isiah and his friend picked her up in a white pickup and they both sexually assaulted her. She stated that they also recorded the incident without her knowledge and sent the video to her afterward. She described another sexual assault by another individual that allegedly occurred shortly thereafter.

Kiesel's first contact with A.M. was on December 27, 2019, at the police department, after which he was able to apply for a search warrant for her Snapchat account, another social media platform. She could not identify Ramirez by his full name until Kiesel's second interview with her on February 9, 2020. Thereafter, Kiesel applied for a search warrant on Ramirez' Snapchat account, A.M.'s Snapchat account, and on a group account of which Ramirez was a member. Kiesel received the last information from Snapchat in April.

Included within the information Kiesel received from Ramirez' social media accounts were explicit sexual videos, including the one of A.M. and Ramirez. Other similar videos were discovered but they did not include A.M. or Ramirez. Kiesel interviewed Ramirez on May 13, 2020. Ramirez initially denied knowing A.M., but after being shown a still picture from the video, he admitted that they had a sexual encounter, but insisted that it was consensual and that A.M. requested that it be recorded.

Frances Romero from District 12 probation testified that an evaluation for a juvenile charged with sexually offending takes at least 30 days to complete and sometimes takes up to 3 months to get back. Treatment varies on the extent of the violation; some violators need inpatient treatment which can take 6 to 9 months. Following inpatient treatment, the juvenile needs to see acommunity provider for an additional 3 to 6 months. According to Romero, it would have been better if the prosecution would have moved forward earlier so services could be put in place, if needed. According to her they "would be fortunate" if they could get the psychological evaluation back before Ramirez turned 19 since the hearing was about 6 weeks prior to Ramirez' 19th birthday.

Ramirez called his mother to testify on his behalf. She is a single mother of three children and described Ramirez as a responsible child who often helps out with his younger brother. From 2014 to 2018, Ramirez was involved in basketball, football, and track. The family moved to Gering in 2019, and Ramirez chose to get a job rather than engage in extracurricular school activities. She reported having no problems with him prior to this incident. She denied him being involved with a street gang and opined that he understood the nature and seriousness of the charges.

On September 15, 2020, the district court denied the motion to transfer. It set forth the factors in Neb. Rev. Stat. § 43-276 (Reissue 2016). As to the first factor, the type of treatment that the juvenile would be amenable to, the court stated:

[Ramirez] has not been involved in prior juvenile court proceedings, so it is not known by history how he would respond to those interventions. The probation officer who testified informed the Court that the juvenile court programs would be practically unavailable because [Ramirez] will reach the age of 19 in October of 2020. Treatment options for juvenile sex offenders can take up to a year.

Weighing the other factors, the court concluded that the alleged offense involved "serious violence and aggressiveness." It found the motivation was "personal sexual gratification" and that supervision should continue past the age of minority. The best interests of Ramirez would be found in some type of correctional treatment and a transfer to juvenile court would provide no real opportunity to use the justice system to change his behavior. It determined that public safety is best served by long term control over his behavior. The court concluded that Ramirez "appears to lack a sense of basic morality -- having sex in a car with a young girl, a stranger, who said she was older than she is, is okay."

Overruling the motion to transfer, the court explained "Two facts stand out in this case -- one, this was a violent assault against a young girl, and two, because of [Ramirez'] age, there is no practical way the appropriate juvenile court rehabilitative services could be applied to his case." Ramirez timely appealed.

Subsequent to the appeal being filed, Ramirez filed a motion to supplement the record with this court. He claimed that A.M. had since recanted her accusations and that the encounter between her and Ramirez was consensual, that she lied about her age, and that she requested the incident be recorded. Ramirez argued that because the district court denied the motion to transfer in large part due to the violent nature of the allegations of sexual assault and those allegations no longer existed, the matter should be either scheduled for supplemental briefing or remanded to the district court with instructions to transfer to juvenile court. We denied the motion to supplement the record but ordered supplemental briefing on the issue of this court's ability to review facts that occurred after the date of the appeal.

III. ASSIGNMENTS OF ERROR

Ramirez assigns that the district court abused its discretion in overruling his motion to transfer and violated his constitutional rights of presumption of innocence, due process, and equal treatment by failing to timely act.

IV. 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.

V. ANALYSIS

1. FACTS OCCURRING DURING APPEAL

We first address Ramirez' request that we consider facts that occurred after the appeal was perfected. Ramirez argues that we should remand the case with directions to transfer to the juvenile court based upon A.M.'s alleged recantation of sexual assault. At oral argument, the State disagreed as to the extent of A.M.'s recantation. We determine that the issue before us is whether the district court erred in denying the motion to transfer based upon the evidence before it at that time; therefore, our review is limited to that same evidence.

Appellate courts are error correcting courts. As has been often stated, "In the absence of plain error, when an issue is raised for the first time...