DALE L. WARNER v. THE STATE OF WYOMING
S-20-0190
IN THE SUPREME COURT, STATE OF WYOMING
November 29, 2021
2021 WY 133
OCTOBER TERM, A.D. 2021
DALE L. WARNER,
Appellant
(Defendant),
v.
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable Michael N. Deegan, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, Wyoming State Public
Defender; Kirk A. Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior
Assistant Appellate Counsel, Corthell and King Law Office, P.C., Laramie,
Wyoming. Argument by Mr. Bennett.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Kristen R. Jones,
Senior Assistant Attorney General. Argument by Ms. Jones.
Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
GRAY, Justice.
[¶1] Dale Warner, a minor, took guns and ammunition to Sage Valley Junior High
School as part of a plan to shoot nine individuals and as many other people as he could.
After his plan was thwarted, he was arrested and charged with nine counts of attempted
first-degree murder. Mr. Warner’s motion to transfer his case to juvenile court was
denied.
be weighed by the district court in deciding whether to transfer a case to juvenile court.
Mr. Warner asserts the district court abused its discretion in weighing the factors under
ISSUE
[¶2] Did the district court abuse its discretion in denying the motion to transfer the case
to juvenile court?
FACTS
[¶3] At three days old, Mr. Warner was removed from his biological parents and placed
in foster care. For the next eleven years, he was moved from foster home to foster
home—over twenty different placements in all—before he arrived at the Warners. He
was adopted by the Warners who later divorced. After the divorce, Mr. Warner split time
between his adoptive parents’ homes.
[¶4] From his early years, Mr. Warner maintained sporadic contact with his biological
father, which consisted mostly of occasional phone calls. On Friday, November 9, 2018,
Mr. Warner learned his biological father had died. He took the news hard and first
reacted by attempting suicide.1 When he did not succeed, he turned to drugs and alcohol
and spent the weekend consuming copious amounts of both. On Monday, November 12,
Mr. Warner returned home to sleep. After he awoke on Tuesday, he conceived a plan to
kill nine specific people and as many others as he could to honor his biological father. As
the plan evolved, it included: obtaining guns and ammunition; hiding his actions from his
brother; protecting a friend from being killed or injured by gun shots; and praying that his
adoptive family did not get sued as a result of his actions.
[¶5] Before leaving for school, Mr. Warner sent his brother ahead to the bus stop.
Next, he stopped by his adoptive father’s truck and grabbed two guns and some
ammunition. He concealed one gun in his waistband and the other in his duffel bag. He,
then, boarded the bus and on the way to school said a prayer to God that his plan—the
shooting—would be in his favor and that his adoptive family would not get sued because
of his actions. When Mr. Warner got to school, he waved three of his friends over and
opened his duffel bag to show them the gun and ammunition. He explained that he was
going to kill six classmates and his teacher in his third hour class, the principal, the
assistant principal, and anyone else he could. One of these friends shared his third hour
class. Mr. Warner told that friend to get down when the shooting started and then
threatened to shoot that friend if he told anyone about the plan. After this, Mr. Warner
went to his locker and changed into a loose sweatshirt to better conceal the gun in his
waistband. He put his duffel bag with the other gun and ammunition in his locker and
went to his first hour class.
[¶6] While in first hour, he made two internet searches—one on “How Mass School
Shootings Affect the Education of the Students Who Survive” and another on how to go
to jail for real. He then left class to go to his locker. On the way, he saw another boy in
the hallway and stopped to talk. Mr. Warner told that boy that he planned on getting into
trouble during third hour. Confused, the boy asked Mr. Warner to repeat what he had
said. Mr. Warner repeated himself and asked the boy if he wanted to see his gun. He
did, and Mr. Warner pulled up his sweatshirt revealing the gun tucked into his waistband.
Mr. Warner then warned this boy not to tell, and the two returned to their separate
classrooms.
[¶7] Shortly thereafter, Mr. Warner’s hallway companion reported his conversation
with Mr. Warner to Principal Quinn. Principal Quinn went to find Mr. Warner in his first
hour class. He sat down next to Mr. Warner and asked if he had a gun. Mr. Warner
admitted that he did and allowed Principal Quinn to remove the gun and confiscate the
ammunition Mr. Warner was carrying. Principal Quinn escorted Mr. Warner to the
athletic director’s office and instructed the secretary to call the police. He then left the
assistant principal and the athletic director in charge of Mr. Warner while he
duffel bag from Mr. Warner’s locker.
[¶8] Mr. Warner was charged with nine counts of attempted first-degree murder for
those potential victims that he specifically identified. Mr. Warner filed a motion to
transfer his case to juvenile court. The transfer motion was assigned to another judge.2
After a two-day hearing, Mr. Warner’s motion was denied. Mr. Warner appeals.3
possession of a deadly weapon with unlawful intent and three to ten years imprisonment on the one count
of aggravated assault and battery. All sentences were to run consecutively.
STANDARD OF REVIEW
[¶9] Decisions to transfer criminal proceedings from district court to juvenile court are
within the sound discretion of the court and our review is for an abuse of discretion. Sam
v. State, 2017 WY 98, ¶ 10, 401 P.3d 834, 842 (Wyo. 2017) (citing Hansen v. State, 904
P.2d 811, 824 (Wyo. 1995)); see also Sen v. State, 2013 WY 47, ¶ 9, 301 P.3d 106, 112
(Wyo. 2013). A district court abuses its discretion when the court’s decision “exceeds
the bounds of measured reason in light of those matters properly before the court.”
Hansen, 904 P.2d at 824 (citing Curl v. State, 898 P.2d 369, 373 (Wyo. 1995)). The
issue is whether the court could “have reasonably concluded as it did.” Thompson v.
State, 2021 WY 84, ¶ 15, 491 P.3d 1033, 1039 (Wyo. 2021) (quoting Majors v. State,
2011 WY 63, ¶ 11, 252 P.3d 435, 439 (Wyo. 2011)).
DISCUSSION
A. Transfer Proceedings in Wyoming
[¶10] In Wyoming, cases involving minors who are at least fourteen years old and
charged with a violent felony “may be originally commenced either in the juvenile court
or in the district court . . . .”
originally commenced in district court, then the minor may file a motion to have his case
transferred to juvenile court.
determinative factors to be considered by the judge in deciding whether the case
should be transferred are:
(i) The seriousness of the alleged offense to the
community and whether the protection of the community
required waiver;
(ii) Whether the alleged offense was committed in an
aggressive, violent, premediated or willful manner;
(iii) Whether the alleged offense was against persons or
against property, greater weight being given to offenses
against persons especially if personal injury resulted;
(iv) The desirability of trial and disposition of the entire
offense in one (1) court when the juvenile’s associates in the
alleged offense are adults who will be charged with a crime;
(v) The sophistication and maturity of the juvenile as
determined by consideration of his home, environmental
situation, emotional attitude and pattern of living;
(vi) The record and previous history of the juvenile,
including previous contacts with the law enforcement
agencies, juvenile courts and other jurisdictions, prior periods
of probation to this court, or prior commitments to juvenile
institutions;
(vii) The prospects for adequate protection of the public and
the likelihood of reasonable rehabilitation of the juvenile (if
he is found to have committed the alleged offense) by the use
of procedures, services and facilities currently available to the
juvenile court.
[¶11] Mr. Warner appeals the district court’s determination that his case should not be
transferred to juvenile court. Mr. Warner relies on JB, 305 P.3d 1137. He argues that the
district court abused its discretion in denying his motion to transfer because the court
placed undue weight on a single factor, “[t]he seriousness of the alleged offense . . . .”
The State counters that the district court did not place undue weight on any single factor
and did not abuse its discretion. The State contends that the district court weighed all the
factors under
case should not be transferred to juvenile court.
C. JB v. State
[¶12] In JB, JB, a fifteen-year-old boy, stood lookout while two others robbed and
attacked two people in their home. JB, ¶¶ 1, 3, 305 P.3d at 1138. JB entered the home
after the initial attack and struck one of the victims on the head with a dresser drawer.5
Both of the home’s occupants were killed. Id. JB was charged in district court with nine
felonies including “two counts of first degree murder, two counts of conspiracy to
commit first degree murder, two counts of aggravated robbery, two counts of conspiracy
to commit aggravated robbery, and one count of first degree arson.” Id. JB filed a
motion to transfer his case to juvenile court which was denied. Id. ¶ 4, 305 P.3d at 1138–
39.
[¶13] The dispositive issue in JB was whether the district court improperly placed the
burden of persuasion to establish whether the case should be transferred on JB rather than
on the State. Id. ¶ 2, 305 P.3d at 1138. We reversed in accordance with our precedent
that the burden of persuasion in transfer hearings is on the State. Id. ¶¶ 10, 17, 305 P.3d
at 1140–42. JB had also argued that the court placed undue weight on one of the seven
statutory factors illustrated by the decision where, four separate times, the district court
repeated that “There are no crimes more serious than ‘violent felony’ crimes in
Wyoming.” Id. ¶ 15, 305 P.3d at 1141. JB contended that the district court failed to
balance all seven factors and instead this factor, “the ‘seriousness of the alleged offense
to the community and . . . the protection of the community,’ . . . overwhelm[ed] all other
considerations.” Id. ¶ 15, 305 P.3d at 1141–42. We did not reach this argument, but
noted:
[T]he weight to be given the statutory factors is within the
sound discretion of the district court. However, the
seriousness of the alleged offense is only one of many
statutory factors to be considered when deciding a motion to
transfer a case from district court to juvenile court. Undue
weight should not be given to any single factor. Wyoming’s
Juvenile Justice Act provides that cases “in which the minor
has attained the age of fourteen (14) years and is charged with
a violent felony” may be brought either in the district court or
in the juvenile court.Wyo. Stat. Ann. § 14-6-203(f)(iv) . This
is a clear signal from the Wyoming Legislature that not all
minors fourteen or older who are charged with violent
felonies should be prosecuted in adult criminal court. The
fact that a minor is charged with violent felonies does not
Id. ¶ 16, 305 P.3d at 1142. See also
response to JB’s argument that there was an overemphasis of one of seven factors, served
only as a reminder that all the factors must be considered. It was not intended to control
the trial court’s discretion in determining the weight to be afforded any given factor. Cf.
Sam, ¶¶ 19–20, 401 P.3d at 845–46; Hansen, 904 P.2d at 828 (“[U]nless there is
absolutely no evidence to support [the court’s] conclusions, the manner in which [the
court] weighs the evidence does not manifest an abuse of discretion.”); see also cases
dealing with other balancing tests, generally: Mayhew v. State, 2019 WY 38, ¶ 27, 438
P.3d 617, 624 (Wyo. 2019) (404(b) evidence); Garrison v. State, 2018 WY 9, ¶ 20, 409
P.3d 1209, 1215 (Wyo. 2018) (same); Griggs v. State, 2016 WY 16, ¶ 128, 367 P.3d
1108, 1143 (Wyo. 2016) (same); Lafferty v. State, 2016 WY 52, ¶ 44, 374 P.3d 1244,
1252 (Wyo. 2016) (constitutional speedy trial); Davis v. State, 2018 WY 40, ¶ 54, 415
P.3d 666, 684 (Wyo. 2018) (juvenile sentencing).
D. The District Court’s Analysis
[¶14] Here, after a two-day transfer hearing where it received exhibits and heard
testimony from twelve witnesses, the district court denied Mr. Warner’s motion to
transfer his case to juvenile court. The district court thoroughly and thoughtfully
weighed each of the seven statutory factors.
[¶15] Applying the first factor—“[t]he seriousness of the alleged offense to the
community” and “the protection of the community,”6
the court found that Mr. Warner’s charged offenses, nine counts of attempted first-degree
murder, were “extremely serious.” The court explained:
Thankfully, no one will ever know if the Defendant
would have gone through with his plan if [the student] had
not gone to Principal Quinn or if Principal Quinn had not
intervened so perfectly. However, what is known is that the
Defendant brought guns and ammunition to school with the
intent to kill his teacher and most of the other students in his
third hour class, along with Principal Quinn and Assistant
Principal Miller. The Defendant had the means to carry out
his plan, and although he told several students of his plan, he
also threatened them to keep quiet or they too could become
his targets. The Defendant also told Officer Fitzner that he
wanted to kill students more than he wanted to get caught
before he had been able to kill anyone.
The court weighed this factor against transfer.
[¶16] The court analyzed the second factor—“[w]hether the alleged offense was
committed in an aggressive, violent, premediated or willful manner,”
§ 14-6-237(b)(ii)
The Court finds that the facts discussed above7
support that the charged offenses were intended to be carried
out in an aggressive, violent, premeditated, and willful
manner. The Defendant formed a plan to kill the teacher and
other students in his third hour class, then shoot Principal
Quinn and Assistant Principal Miller, and then continue
shooting until he ran out of bullets. The Defendant then took
steps tocarry out that plan. The fact that no one was hurt due
to the intervention of a third party does not diminish the
aggressive, violent, and premeditated nature of the offenses.
This factor weighed against transfer.
[¶17] On the third factor—“[w]hether the alleged offense was against persons or against
property . . . ,”
There is no dispute that the alleged offenses were
against specifically identified persons. In addition, the
Defendant’s plan could have resulted in the injury or death of
other unnamed students or staff members. Fortunately, no
one was actually injured in this case due to the intervention of
a third party. However, the Court cannot ignore the fact that
the Defendant’s plan carried a high risk of injury or death to
the students and staff at the junior high.
The court weighed this factor against transfer.
[¶18] The court concluded the fourth factor—the “disposition of the entire offense in
one (1) court when the juvenile’s associates in the alleged offense are adults . . . ,”
Stat. Ann. § 14-6-237(b)(iv)
[¶19] In evaluating the fifth factor—“[t]he sophistication and maturity of the juvenile as
determined by consideration of his home, environmental situation, emotional attitude and
pattern of living,”
Warner’s childhood:
The Defendant was fourteen (14) when the charged
offenses occurred. The Defendant had been removed from
his biological parents’ home when he was just three (3) days
old due to neglect. . . . The Defendant was placed in over
twenty (20) foster care placements. . . . The Defendant had
very little contact with either of his biological parents after
the age of six (6). The Defendant was placed with the
Warners around the age of ten (10) or eleven (11). The
Warner[s] divorced about a year after the Defendant’s
adoption, and he was living back and forth between their
homes at the time of the incident. The Defendant had become
disrespectful to [Mrs.] Warner in the months leading up to the
incident, and he had begun experimenting with substance
abuse. The Defendant had also attempted suicide on at least
one occasion prior to the incident.
The court then discussed Mr. Warner’s level of sophistication and maturity:
The evidence that was presented at the hearing and in
the attachments to the motion and the State’s objection
demonstrates that the Defendant was not as unsophisticated
and immature as Dr. Geer’s claims. For example, . . . one of
the consequences the Defendant considered was the
possibility of his family being sued as a result of his actions.
This was a sophisticated and mature consequence for the
Defendant to have considered. The Defendant also told
multiple people that he knew he would go to jail for what he
was planning to do, and that he was intentionally seeking that
consequence. The Defendant was also sophisticated enough
to take steps to avoid detection. He sent his brother to the bus
stop before obtaining the guns. He concealed at least one of
the guns and most of the ammunition in the duffel bag. He
changed his sweatshirt so that it would better conceal the gun
in his waistband.
The court concluded that “[a]lthough it is undisputed that the Defendant had a traumatic
upbringing, the evidence shows that he had the sophistication and maturity to form a
premeditated plan and to understand the consequences of his actions” and weighed this
factor against transfer.
[¶20] In analyzing the sixth factor—“[t]he record and previous history of the juvenile . .
. ,”
been adjudicated as a delinquent in juvenile court. The court explained:
[T]he Defendant does have an extensive CPS history in South
Dakota. Although these records were not admitted, it appears
that the Defendant received counseling and medication for his
mental health diagnoses through the CPS case. The Court
does not know what other services the Defendant received
through the juvenile case(s) in South Dakota.
court.
[¶21] In weighing the seventh factor—“[t]he prospects for adequate protection of the
public and the likelihood of reasonable rehabilitation . . . ,”
237(b)(vii)
for rehabilitation.
The Defendant offered the testimony of Kara Big
Crow, Jeff Iron Cloud, Dr. Gibson, and Dr. Geer, who all
opined that they believe the Defendant has the potential to be
rehabilitated. These opinions were largely based on the
witnesses’ limited interactions with the Defendant. Many of
these witnesses believed that the Defendant was receptive to
change, and that he [had] already undergone some emotional
growth while they had been working with him. These
witnesses also testified that the Defendant has expressed great
remorse. Similarly, Principal Quinn testified that he believed
the Defendant should be tried as a juvenile. Principal Quinn’s
opinion carried great weight with the Court. However,
Principal Quinn admitted that he formed his opinion without
knowing all of the facts.. . .
Although most of the evidence about the Defendant’s
capacity for rehabilitation was presented through unsupported
opinions, the State did not present any evidence that the
Defendant is so far gone that he cannot possib[ly] be
rehabilitated.
The court found that if the seventh factor rested solely on the likelihood of rehabilitation,
then this factor would likely weigh in favor of transferring his case to juvenile court. The
court then balanced the likelihood of rehabilitation against the prospect for adequate
protection of the public.
The evidence established that it is highly likely that the
Defendant would not be under the supervision of the juvenile
court until he was twenty-one (21). The practical reality of
our juvenile system is that he would stop receiving services at
age eighteen (18), less than three (3) years from now.
Further, according to Ms. Duvall, the Boy’s School is the
only “lockdown” placement in the juvenile system, and it is
likely that the Defendant would be at the Boy’s School for
twelve (12) to eighteen (18) months. This detention could
end sooner if the Boy’s School felt like there were no more
services to offer to the Defendant. He would then likely be
returned to the community under the supervision of his
parents and a probation officer. The Defendant was under the
supervision of his parents at the time the incident occurred.
Similarly, the oversight of a probation officer does not
provide much comfort in this case. Although Ms. Duvall
testified that there are sanctions that can be imposed if a
juvenile’s behavior “escalates,” in the Defendant’s case he
escalated from substance abuse and self-harm to attempted
first degree murder over the course of a weekend. Thus, the
Defendant poses a threat to society that may not be
appropriately managed through probation.
The court weighed the seventh factor against transfer.
[¶22] The district court weighed five factors against transfer, one as neutral, and one
slightly in favor of transfer. In balance, the district court concluded that the factors
weighed against transfer. Our role is to determine whether the trial court abused its
discretion in considering the required factors. See, e.g., Griggs, ¶ 128, 367 P.3d at 1143
(considering factors weighed in determining whether to admit evidence pursuant to
W.R.E. 404(b)). Here, the district court identified the appropriate factors for examination
as required by
regarding each factor and applied appropriate legal considerations to those findings.
While the district court afforded weight to the seriousness of Mr. Warner’s alleged
offenses, it did not place undue weight on that factor. The court’s decision was within
“the bounds of measured reason.” Hansen, 904 P.2d at 824 (citing Curl, 898 P.2d at
373). We find no abuse of discretion.
[¶23] The district court thoughtfully analyzed and weighed all applicable factors under
Warner’s motion to transfer. We affirm.
Notes
night, he vomited up the pills. He told Officer Fitzner, a police officer investigating the charges against
him, that he then thought about cutting his throat but changed his mind.
Judge John G. Fenn.
attempted first-degree murder, and in exchange, Mr. Warner pled guilty to two counts of possession of a
deadly weapon with unlawful intent and entered a plea of nolo contendere to one count of aggravated
assault and battery. He was sentenced to four and one-half to five years imprisonment for each count of
hearing and without applying the factors that the District of Columbia had established to govern the
disposition of waiver requests. Id. at 546 n.4, 86 S.Ct. at 1049 n.4. The Supreme Court held in Kent that
the juvenile court must have “a statement of the reasons or considerations” accompany its orders to waive
jurisdiction. Id. at 561, 86 S.Ct. at 1057. The District of Columbia’s factors were attached to the Kent
opinion as an appendix and became known as the Kent factors. Id. at 566–67, 86 S.Ct. at 1060. Many
states either judicially or legislatively adopted some or all the Kent factors. Compare State v. Pittman, 647 S.E.2d 144, 160 (S.C. 2007) (explaining that the court must consider all eight Kent factors); State v. Williams, 453 P.2d 418, 420 (Wash. 1969) (adopting all eight Kent factors), with
318(g) (LexisNexis 2021)
six factors being identical or similar to the Kent factors);
(incorporating four Kent factors). The seven statutory factors set forth in
are similar to the Kent factors. Compare Kent, 383 U.S. at 566–67, 86 S.Ct. at 1060, with
Ann. § 14-6-237(b)
reasoning on the protection of the community is contained in its analysis of the seventh factor. See infra
¶ 21.
he could not form premeditated plans because a juvenile’s brain is different from an adult’s. The court
explained that “[a]lthough science and the law recognize that a juvenile’s brain is different from an
adult’s and juveniles tend to be more impulsive, it does not necessarily follow that a juvenile cannot form
premeditated thoughts and plans.” Second, Mr. Warner argued that he was incapable of forming a
premeditated plan because of his substance use from the previous weekend. The court found that he “was
capable of forming premeditated plans.” Finally, Mr. Warner argued that he did not act in a premeditated
manner because he had developed the plan when he woke up on the morning of the incident. The court
found that premeditation “does not require [Mr. Warner] to have spent days, weeks, or months forming
his plan . . . ,” and Mr. Warner’s own words showed he had formed the required intent.