In re Interest of Tyler F.

iN re iNtereSt of tyler f., A Child uNder 18 yeArS of Age .
S tAte of N ebrASkA, Appellee , v . tyler f., AppellANt .
755 N.W.2d 360
Filed September 5, 2008. 	No. S-07-554.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
3. Judgments: Appeal and Error. In reviewing questions of law, an appellate court
reaches conclusions independent of the lower court’s ruling.
4. Miranda Rights. Miranda rights apply only where there has been such a restric-
tion on a person’s freedom as to render him or her in custody.
5. Investigative Stops: Miranda Rights. In the absence of custody, authorities may
freely question a suspect—and use any resulting statements at trial—even without
advising a suspect of his or her Miranda rights.
6. ____: ____. In resolving whether a suspect was in police custody for Miranda
purposes, the ultimate inquiry is simply whether there is a formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest.
7. Investigative Stops. Whether the requisite degree of restraint occurred to render
a suspect in custody is to be determined based on how a reasonable person in the
suspect’s situation would perceive his or her circumstances.
8. ____. A court must examine all of the circumstances surrounding the interroga-
tion and determine how a reasonable person in the position of the individual
being questioned would gauge the breadth of his or her freedom of action.
9. ____. To assist in the circumstantial custody inquiry, courts will find it helpful
to employ a six-factor test: (1) whether the suspect was informed at the time of
questioning that the questioning was voluntary, that the suspect was free to leave
or request the officers to leave, or that the suspect was not considered under
arrest; (2) whether the suspect possessed unrestrained freedom of movement
during questioning; (3) whether the suspect initiated contact with authorities or
voluntarily acquiesced to official requests to respond to questions; (4) whether
strong-arm tactics or deceptive stratagems were employed during questioning; (5)
whether the atmosphere of the questioning was police dominated; or (6) whether
the suspect was placed under arrest at the termination of the questioning.
10. Due Process: Confessions. If a confession was given involuntarily, then use
of the confession at trial violates the defendant’s 14th Amendment due proc-
ess rights.
11. Confessions: Proof. The prosecution has the burden to prove by a preponderance
of the evidence that incriminating statements by the accused were voluntarily
given and not the product of coercion.
12. ____: ____. The factors used to determine whether an incriminating statement
was voluntarily given include whether (1) defendant is in custody at the time
of the statement, (2) defendant is alone and unrepresented by counsel, (3) the
IN re INTereST OF TYLer F. 	527
Cite as 276 Neb. 527
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

promise or inducement is initiated by prosecuting officials as opposed to defend-
ant or someone acting on his behalf, (4) defendant is aware of his constitutional
and other legal rights, (5) the potentially incriminating statement is part of an
abortive plea bargain, (6) the promise or inducement leading to the statement is
fulfilled by prosecuting authorities, and (7) defendant is subjected to protracted
interrogation or evidence appears on the record to show that coercion precludes
the statement from being knowing and intelligent.
13. Confessions: Minors. A factor to consider in determining the voluntariness of an
incriminating statement is whether the suspect was a minor.
14. Appeal and Error. error without prejudice provides no ground for relief
on appeal.
Appeal from the Separate Juvenile Court of Douglas County:
douglAS f. J ohNSoN, Judge. Affirmed.
richard J. epstein and Nancy A. rath for appellant.
Donald W. Kleine, Douglas County Attorney, emily A.
beller, and benjamin Pinaire for appellee.
heAviCAN, 	C.J., 	wright, 	C oNNolly, 	gerrArd, 	S tephAN,
mCC ormACk, and miller -lermAN, JJ.
heAviCAN, C.J.
I. INTrODUCTION
Tyler F., a minor, appeals his adjudication in the separate
juvenile court of Douglas County on allegations of criminal
impersonation, count I, and disturbing the peace, count II.
According to the allegations, Tyler, posing as one Kimberly V.,
created an Internet posting to attract men interested in sexual
encounters. Several men contacted Kimberly, a married mother
of two children, using the contact information included in
the post. After a bench trial, the juvenile court found counts
I and II of the petition to be true and Tyler was found to be a
child as defined by Neb. rev. Stat. § 43-247(1) (Cum. Supp.
2006). This appeal followed. We affirm for the reasons set
forth below.
II. bACKGrOUND
early in the fall of 2006, Kimberly and Tyler’s family had a
dispute for reasons that are not entirely clear from the record.
In mid-October of that same year, Kimberly began receiving
calls and visits to her home from men who were interested in
528 	276 NebrASKA rePOrTS

having sexual relations with her. The men were responding to a
message posted under Kimberly’s name on “Craigslist,” a Web
site analogous to the classifieds section of a local newspaper.
The Craigslist posting included statements that Kimberly was
single and looking to have sexual intercourse with men, and
also provided her home address and telephone number. The
posting also included photographs of the exterior of Kimberly’s
home as well as graphic images of women posing nude and
engaging in various sexual acts with men.
Kimberly contacted the Omaha Police Department. Officers
Paul Milone and eric Nordby investigated the incident. based
on information supplied by Craigslist and an Internet service
provider, the officers determined that the Internet address of
the computer used to generate the online posting belonged to
Tyler’s family’s computer. Milone and Nordby then visited
Tyler’s parents at their home. Tyler’s mother told officers that
she did not really know how to use the computer. She also
stated that Tyler, who was a few months “shy of” his 15th
birthday at the time, was the member of the household who
used the computer most often. She then gave Milone and
Nordby permission to speak with Tyler.
Milone and Nordby, dressed in plain clothes, went to Omaha
Central High School (OCHS), where Tyler was enrolled. The
officers made contact with an Officer Kelly, a uniformed police
officer assigned to OCHS. Kelly asked the school’s security
guards to bring Tyler to his office. The guards contacted Tyler
in his biology class and escorted him to Kelly’s office. Milone,
Nordby, and Kelly were waiting for Tyler inside the office. The
office itself is a very small, windowless room. The door to the
office was closed during the questioning. Kelly left the room
before the questioning began.
by all accounts, the officers questioned Tyler for approxi-
mately 20 minutes. The officers never read Tyler his Miranda
rights. Tyler initially told the officers that he had no knowledge
of the Craigslist posting. However, Tyler eventually confessed
after officers explained that the Internet address of the com-
puter used to generate the posting belonged to his family’s
computer. After confessing to the crime, Tyler was allowed to
return to class.
IN re INTereST OF TYLer F. 	529
Cite as 276 Neb. 527

Prior to trial, Tyler attempted to suppress his confession.
Milone and Nordby testified for the prosecution at the sup-
pression hearing. Tyler conceded on the witness stand that the
officers told him he was not under arrest. Nevertheless, Tyler
testified that he did not feel free to leave the interview and that
he believed he was obligated to answer the officers’ questions.
regarding the details of the interrogation itself, Tyler’s account
of what transpired differs from the officers’ accounts on three
key details. First, Tyler testified that he was never told he was
free to leave. Milone testified that he and Nordby specifically
told Tyler he could leave at any time. Nordby corroborated
Milone’s testimony. Tyler also testified that the officers threat-
ened to take him into a juvenile detention center for a period
of 5 days if he did not “cooperate” with their investigation.
both officers, however, denied that such a threat was ever
made. The court specifically credited the officers’ testimony in
both regards.
Tyler also testified at the suppression hearing that he saw the
officers’ weapons. However, Milone testified that his weapon
was holstered at his hip on his belt and concealed by his suit
jacket. Similarly, Nordby testified that he carried his weapon in
a shoulder holster near his armpit and that his weapon was also
concealed by his jacket during the interrogation. both officers
testified that they did not affirmatively flash their weapons at
Tyler. The juvenile court never made a specific finding on this
issue, except its more general conclusion that it found “the
police officers were credible.” It is also worth noting that at
one point during the suppression hearing, the juvenile court
observed on its own initiative that Tyler is a “large-framed
young man.” Ultimately, the juvenile court denied Tyler’s
motion to suppress his confession.
At trial, the prosecution presented testimony from Kimberly
and Milone. Kimberly testified that she did not create the
Craigslist posting herself. Milone recounted Tyler’s confession
over a renewed objection from Tyler’s counsel. After the pros-
ecution rested, Tyler moved to dismiss count I of the petition
because it alleged a violation of “Neb. rev. Stat. §28-2608,”
a code section that does not exist. Tyler also moved to dis-
miss count II of the petition on the theory that it was third
530 	276 NebrASKA rePOrTS

parties—the anonymous men who contacted Kimberly—that
actually disturbed Kimberly’s peace, not Tyler.
regarding count I, the court noted that the language in count
I was almost identical to that of Neb. rev. Stat. § 28-608 (Cum.
Supp. 2006) and that an extra “2” was added through clerical
error. Accordingly, the court felt that in the interest of justice,
count I of the State’s petition should be amended to reflect
§ 28-608 rather than “§28-2608.” regarding count II, the court
overruled Tyler’s motion to dismiss without explanation.
Having disposed of Tyler’s motions, Tyler was adjudicated
on both counts and the court ordered him to (1) apologize to
Kimberly and her family; (2) refrain from using the Internet,
e-mail, or other electronic devices which could send or receive
messages of the sort involved in this case; (3) avoid any and all
contact with Kimberly or her family; (4) reside in his parents’
home and obey all of their rules; (5) have perfect attendance at
school and turn in all classwork on time; (6) not associate with
anyone not approved of by his parents; and (7) immediately
inform his attorney and the court of any changes in his contact
information. Tyler appeals his adjudication to this court.
III. ASSIGNMeNTS OF errOr
Tyler assigns, restated, that the juvenile court erred when it
(1) overruled Tyler’s motion to suppress incriminating state-
ments he made to officers, (2) became a witness on behalf of
the prosecution by taking note of Tyler’s physical stature, and
(3) overruled Tyler’s motions to dismiss counts I and II of the
prosecution’s petition.
IV. STANDArD OF reVIeW
[1-3] Juvenile cases are reviewed de novo on the record, and
the appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings.1 However, when the evi-
dence is in conflict, the appellate court may consider and give
weight to the fact that the trial court observed the witnesses
1 In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007); In re
Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007).
IN re INTereST OF TYLer F. 	531
Cite as 276 Neb. 527

and accepted one version of the facts over the other.2 In review-
ing questions of law, an appellate court reaches conclusions
independent of the lower court’s ruling.3
V. ANALYSIS
1. grouNdS for S uppreSSiNg tyler ’S
iNCrimiNAtiNg S tAtemeNtS
In his first assignment of error, Tyler contends that incrimi-
nating statements he made to officers at OCHS should have
been suppressed for two reasons. First, Tyler argues that use
of the statements at trial violated his Fifth Amendment rights
because he was not given Miranda warnings before officers
elicited the confession. Second, Tyler believes the prosecution
did not meet its burden to show that Tyler voluntarily made the
incriminating statements.
(a) Miranda Implications
[4,5] In Miranda v. Arizona,4 the U.S. Supreme Court held
that authorities must advise suspects that they have certain
rights before subjecting them to a “custodial interrogation.” If
they do not, any incriminating statements obtained during the
interrogation are prone to suppression.5 However, by limiting the
sweep of Miranda to cases of custodial interrogation, the Court
held that Miranda rights apply only “where there has been such
a restriction on a person’s freedom as to render him [or her] ‘in
custody.’”6 In the absence of such restriction, authorities may
freely question a suspect—and use any resulting statements at
trial—even without advising a suspect of his or her Miranda
rights. All parties agree that the officers did not advise Tyler of
2 See In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d
184 (2004).
3 See In re Interest of Chad S., 263 Neb. 184, 639 N.W.2d 84 (2002).
4 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. ed. 2d
694 (1966).
5 See id.
6 Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. ed. 2d
714 (1977) (per curiam). Accord State v. Brouillette, 265 Neb. 214, 655
N.W.2d 876 (2003).
532 	276 NebrASKA rePOrTS

his Miranda rights. The question, then, is whether Tyler was in
custody during the interrogation. If Tyler was in custody, then
his confession should have been suppressed and its use at trial
violated Tyler’s Fifth Amendment rights.
[6-8] In resolving whether a suspect was in police custody
for Miranda purposes, “‘the ultimate inquiry is simply whether
there is a formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.’”7 Whether the req-
uisite degree of restraint occurred is to be determined “based
on how a reasonable person in the suspect’s situation would
perceive his [or her] circumstances.”8 In other words, we “must
examine ‘all of the circumstances surrounding the interroga-
tion’ and determine ‘how a reasonable person in the position of
the individual being questioned would gauge the breadth of his
or her freedom of action.’”9
(i) Custody Under Axsom
[9] To assist in the circumstantial custody inquiry, we find
it helpful to employ a six-factor test10 which was originally
devised by the eighth Circuit in U.S. v. Axsom.11 As set forth in
Axsom,12 the six factors are as follows:
“(1) whether the suspect was informed at the time of
questioning 	that 	the 	questioning 	was 	voluntary, 	that
the suspect was free to leave or request the officers to
[leave], or that the suspect was not considered under
arrest; (2) whether the suspect possessed unrestrained
freedom of movement during questioning; (3) whether the
7 Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S. Ct. 2140, 158 L. ed. 2d
938 (2004) (quoting California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517,
77 L. ed. 2d 1275 (1983) (per curiam)).
8 Yarborough, supra note 7, 541 U.S. at 662 (citing Berkemer v. McCarty,
468 U.S. 420, 104 S. Ct. 3138, 82 L. ed. 2d 317 (1984)). See, also, State
v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
9 Yarborough, supra note 7, 541 U.S. at 663 (quoting Stansbury v. California,
511 U.S. 318, 114 S. Ct. 1526, 128 L. ed. 2d 293 (1994) (per curiam)).
10 See State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
11 U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).
12 Id. at 500.
IN re INTereST OF TYLer F. 	533
Cite as 276 Neb. 527

suspect initiated contact with authorities or voluntarily
acquiesced to official requests to respond to questions; (4)
whether strong[-]arm tactics or deceptive stratagems were
employed during questioning; (5) whether the atmosphere
of the questioning was police dominated; or, (6) whether
the suspect was placed under arrest at the termination of
the questioning.”
The first three factors of the Axsom test are regarded as “mit-
igating” factors—that is, their presence suggests the encoun-
ter was noncustodial in nature.13 In contrast, the latter three
factors are considered “aggravating” factors; their presence
increases the likelihood that a reasonable person would regard
the encounter as custodial.14 Our review of the record in light
of these six factors leads us to conclude that Tyler’s encounter
with officers at OCHS was noncustodial in nature.
There is no dispute regarding the first mitigating factor.
Tyler himself conceded at trial that both Milone and Nordby
informed him that he was not under arrest. The evidence also
supports the second mitigating factor—whether the suspect
possessed unrestrained freedom of movement during question-
ing. When discussing this factor, courts look for traditional
hallmarks of a degree of restraint “associated with a formal
arrest.”15 For example, in evaluating the presence of this fac-
tor in the case before it, the Axsom16 court observed that the
suspect “was not handcuffed.” Similarly, an officer’s “physical
contact” with the suspect—such as grabbing or blocking the
suspect to prevent or encumber movement—might also pre-
clude a finding that the suspect possessed unrestrained freedom
of movement.17
13 See McKinney, supra note 10, 273 Neb. at 364, 730 N.W.2d at 91 (citing
Mata, supra note 8). Accord Mata, supra note 8 (citing Axsom, supra
note 11).
14 See McKinney, supra note 10, 273 Neb. at 364, 730 N.W.2d at 91.
15 Beheler, supra note 7, 463 U.S. at 1125.
16 Axsom, supra note 11, 289 F.3d at 502.
17 U.S. v. Nishnianidze, 342 F.3d 6, 14 (1st Cir. 2003). See, also, Locke v.
Cattell, 476 F.3d 46 (1st Cir. 2007); Axsom, supra note 11.
534 	276 NebrASKA rePOrTS

There is no evidence that Tyler was handcuffed or physically
restrained in any manner during questioning. While the door
to the interrogation room was closed, there is no evidence that
the door was locked to prevent Tyler from getting outside. Nor
is there evidence that officers tried to physically block Tyler
from leaving the interview room. In fact, the record shows
that Tyler was closest to the door—he was positioned between
it and the officers questioning him. Under our precedent, the
mere fact that the questioning took place in an unlocked room
is not enough to suggest that Tyler’s freedom was restrained.
In State v. Mata,18 we concluded that there was “no evidence
of restrictions placed on [raymond] Mata’s movement during
questioning” even though Mata was questioned by a pair of
officers in an unlocked room at the police station. All of the
above supports the conclusion that Tyler’s freedom was not
restrained during his encounter with officers.
The third mitigating factor—whether the suspect initiated
contact with authorities or voluntarily acquiesced to official
requests to respond to questions—presents a more difficult
issue. It is clear that Tyler did not initiate contact with authori-
ties. by all accounts, school security guards located Tyler
in class, requested his presence at the school administration
building, and escorted him there. However, the fact that a sus-
pect was escorted to the interrogation by authorities does not
automatically preclude a finding that the suspect voluntarily
acquiesced in the interrogation.
In Mata, officers found Mata at the home of an acquaintance
and eventually drove him to the police station for question-
ing. Nonetheless, we held that Mata voluntarily acquiesced
in the questioning because he agreed to speak with officers
after being “told at the police station that he could leave at
any time.”19
The 	record 	contains 	contradictory 	testimony 	regarding
whether Tyler was advised that he could leave at any time.
Tyler maintains that he was never told he was free to leave,
while Milone testified that Tyler was so advised. The trial court
18 Mata, supra note 8, 266 Neb. at 683, 668 N.W.2d at 466.
19 Id. at 681, 668 N.W.2d at 465.
IN re INTereST OF TYLer F. 	535
Cite as 276 Neb. 527

credited Milone’s version of the facts. Although we review
the record de novo, we may give weight to the trial court’s
resolution of such inconsistencies.20 Tyler does not offer any
reasons why we should depart from the trial court’s resolution
of this contradictory testimony. We therefore adopt the trial
court’s finding that Tyler was told he could leave if he wanted.
At the suppression hearing, Tyler admitted that he agreed to
speak with the officers. because he did so after being advised
that he was not required to stay, we conclude that Tyler, like
Mata, “‘voluntarily acquiesced to official requests to respond
to questions.’”21
The first aggravating factor—and the fourth Axsom factor
overall—asks whether strong-arm tactics or deceptive strata-
gems were employed during questioning. The record suggests
that they were not. Milone and Nordby were dressed in plain
clothes and did not have their firearms drawn. Nor did the
officers employ any deceptive stratagems. Instead, the officers
merely confronted Tyler with the fact that the Internet posting
in question had been traced to his family’s computer. Tyler
confessed when confronted with that simple fact.
Tyler maintains that the officers threatened to send him to
juvenile detention if he did not cooperate, but Milone denied
this allegation. The juvenile court specifically credited Milone’s
testimony over Tyler’s on this issue. Once again, we see no rea-
son to reject the trial court’s determination in that regard. The
first aggravating factor is not present in this case.
The record also fails to support the third aggravating fac-
tor—whether the suspect was placed under arrest at the termi-
nation of questioning. All parties agree that Tyler was permit-
ted to return to class at the conclusion of the questioning.
A legitimate question remains, however, as to whether the
second aggravating factor—whether the questioning took place
in a police-dominated atmosphere—is present. Ordinarily, this
factor is triggered by questioning which takes place at a police
20 See In re Interest of Brian B. et al., supra note 2.
21 Axsom, supra note 11, 289 F.3d at 500.
536 	276 NebrASKA rePOrTS

station house.22 Tyler was questioned in an office in the admin-
istrative area of the school. At least one court has indicated
that such a context does not qualify as “police dominated”
for Miranda purposes.23 On the other hand, questioning which
takes place behind closed doors in a small, windowless office
can be distinguished from environments that are generally
not considered “police dominated,” such as questioning in a
suspect’s own home24 or outdoors in a public place.25
We need not definitively resolve this issue, however, because
the circumstances show that Tyler was not in custody even if
we assume the questioning occurred in a police-dominated
atmosphere. Such an assumption would result in a single aggra-
vating factor, yet the record reveals that all three of Axsom’s
mitigating factors are present on this record. In that respect,
this case is identical to the situation in Mata.26
Like Mata, Tyler acquiesced in the questioning despite being
led to the interrogation by authorities. Neither Tyler nor Mata
was restrained during the interrogation, and both individuals
were advised that they were not under arrest. No deceptive
stratagems or strong-arm tactics were employed in either case.
Finally, Mata and Tyler were allowed to leave at the conclusion
of questioning. We concluded that Mata’s interrogation was
not custodial despite the fact that the interrogation took place
in an undeniably police-dominated atmosphere. The similarity
between this case and Mata confirms that Tyler’s interrogation
was also noncustodial even if it, too, took place in a police-
dominated atmosphere.
(ii) Significance of Tyler’s Youth
The only real distinction between this case and Mata for
Miranda purposes is the fact that Tyler is a minor. but it
is not clear how a suspect’s age factors into the custody
22 See, e.g., Mata, supra note 8.
23 See People v. Mayes, 202 Mich. App. 181, 508 N.W.2d 161 (1993).
24 Cf. Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. ed. 2d
222 (1985).
25 See Berkemer, supra note 8.
26 Mata, supra note 8.
IN re INTereST OF TYLer F. 	537
Cite as 276 Neb. 527

determination. As a plurality of the U.S. Supreme Court held
in Yarborough,27 “Our opinions applying the Miranda custody
test have not mentioned the suspect’s age, much less mandated
its consideration.” The plurality conceded that a suspect’s age
is relevant when assessing “the voluntariness of a statement,”28
because that inquiry has been said to depend on “the character-
istics of the accused,”29 including “the suspect’s age, education,
and intelligence . . . as well as a suspect’s prior experience with
law enforcement.”30 but unlike the voluntariness determination,
“the custody inquiry states an objective rule designed to give
clear guidance to the police, while consideration of a suspect’s
individual characteristics—including his age—could be viewed
as creating a subjective inquiry.”31
Justice O’Connor wrote separately in Yarborough to empha-
size that “[t]here may be cases in which a suspect’s age will
be relevant to the ‘custody’ inquiry under Miranda.”32 She did
not think the suspect’s age was relevant in that case, however,
because the suspect “was almost 18 years old at the time of his
interview.”33 A fair reading of Yarborough therefore compels
the conclusion that “[t]he Supreme Court has not definitively
ruled on whether a suspect’s youth is part of the objective
Miranda custody analysis.”34
The difficulty in resolving this issue stems from an inherent
tension between the two legitimate policy interests at stake. On
one hand, the blanket declaration that a suspect’s age is wholly
irrelevant to the custody determination would seem clearly
wrong in cases involving a young child. For example, the Fifth
27 Yarborough, supra note 7, 541 U.S. at 666.
28 Id. at 667.
29 Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. ed.
2d 854 (1973).
30 Yarborough, supra note 7, 541 U.S. at 668 (citing Schneckloth, supra
note 29, and Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. ed. 2d
922 (1963)).
31 Yarborough, supra note 7, 541 U.S. at 668.
32 Id. at 669 (O’Connor, J., concurring).
33 Id.
34 In re I.J., 906 A.2d 249, 262 n.12 (D.C. 2006).
538 	276 NebrASKA rePOrTS

Circuit observed in dicta that “[t]he case of an eleven-year-old
is different” and that when presented with such a young sus-
pect, “police should have no difficulty recognizing that their
suspect is a juvenile and adjusting their determination whether
the suspect would understand his freedom of movement to be
constrained accordingly.”35
On the other hand, it would be difficult to take a suspect’s
age into account in any principled manner. Courts in a num-
ber of states apply “a ‘reasonable juvenile’ standard, focusing
on the impact of the objective circumstances surrounding the
interrogation of a juvenile of specific age.”36 but such a stan-
dard may offer more in theory than it does in practice. What,
for example, is an officer to make of the difference between a
reasonable 16-year-old suspect and a reasonable 13-year-old
suspect? As Justice O’Connor observed, “even when police do
know a suspect’s age, it may be difficult for them to ascertain
what bearing it has on the likelihood that the suspect would
feel free to leave.”37
Moreover, the assumption that all suspects of one par-
ticular age are equally sophisticated is almost as unsatisfying
as the assumption that all people—adults and children—are
equally sophisticated. Thus, if a suspect’s age is to be taken
into account, why not include other “objective circumstances
that . . . are [also] relevant to the way a person would
understand his situation,”38 such as the suspect’s education
and intelligence?39
but “[o]ne of the principal advantages” of the Miranda rule
is that it “‘“has the virtue of informing police and prosecutors
with specificity as to what they may do in conducting custodial
interrogation, and of informing courts under what circum-
stances statements obtained during such interrogation are not
35 Murray v. Earle, 405 F.3d 278, 287 (5th Cir. 2005).
36 In re L.M., 993 S.W.2d 276, 288 (Tex. App. 1999) (collecting cases).
37 Yarborough, supra note 7, 541 U.S. at 669 (O’Connor, J., concurring).
38 Id. at 674 (breyer, J., dissenting; Stevens, Souter, and Ginsburg, JJ., join).
39 See Alvarado v. Hickman, 316 F.3d 841 (9th Cir. 2002) (collecting cases),
reversed, Yarborough, supra note 7.
IN re INTereST OF TYLer F. 	539
Cite as 276 Neb. 527

admissible.”’”40 Consideration of a suspect’s age and other fac-
tors “would substantially undermine this crucial advantage of
the [Miranda] doctrine”41 by forcing police “to make guesses
as to [the circumstances] at issue”42—and, as Justice O’Connor
observed in her concurrence in Yarborough, the effect of those
circumstances—“before deciding how they may interrogate
the suspect.”43
In short, there is no easy answer to the issue of whether a
suspect’s age should factor into the custody assessment. The
complexity inherent in this issue suggests that we proceed
cautiously in our attempt to answer it. Ultimately, we believe
there are two reasons why it would be best to avoid resolv-
ing this difficult question today. First, neither party addressed
whether—let alone how—a suspect’s age should factor into
the custody assessment. This is significant because “[s]ound
judicial decisionmaking requires ‘both a vigorous prosecution
and a vigorous defense’ of the issues in dispute.”44 Second,
our ability to dispose of the instant case does not depend on a
definitive resolution of this issue. When compared to interroga-
tions in case law from other jurisdictions, Tyler’s interrogation
would not be custodial even if we took his age into account.
In In re Jason W.T.,45 the Wisconsin Court of Appeals heard
a case involving a police interrogation of a 12-year-old suspect.
A uniformed police officer escorted the suspect from class and
proceeded to interrogate him in the principal’s office. (The
principal was not present.) At the outset of its analysis, the
court explained:
40 Berkemer, supra note 8, 468 U.S. at 430.
41 Id.
42 Id. at 431.
43 Id.
44 Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 572, 113 S.
Ct. 2217, 124 L. ed. 2d 472 (1993) (Souter, J., concurring in part and con-
curring in the judgment) (quoting Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 98 S. Ct. 694, 54 L. ed. 2d 648 (1978)).
45 In re Jason W.T., No. 02-0705-FT, 2002 WL 1767211 (Wis. App. Aug. 1,
2002) (unpublished opinion).
540 	276 NebrASKA rePOrTS

[I]n applying the objective test, it is appropriate to ask
what a reasonable child in [the suspect’s] circumstances
would understand his situation to be; we cannot see
how to apply the objective test in a rational way while
overlooking the fact that he is twelve years old and not
an adult.46
Nonetheless, the court concluded that “there is no question that
when the officer began to question [the suspect], a reasonable
child in his situation would have understood he was not in
custody.”47 The court’s conclusion was based on the fact that
“[t]he officer told [the suspect] that he was free to go, that he
was not under arrest, and that he did not have to talk to him if
he did not want to.”48
The Oregon Court of Appeals used nearly identical reasoning
in State ex rel. Juv. Dept. v. Loredo.49 In that case, a 13-year-
old suspect was summoned from his classroom over the school
intercom, went to the principal’s office, and was interrogated
by a single police officer in plain clothes. relying on its deci-
sion in Matter of Killitz,50 the court explained that its custody
assessment must take into consideration “whether a reasonable
person in [the] child’s position—that is, a child of similar age,
knowledge and experience, placed in a similar environment—
would have felt required to stay and answer all of [the offi-
cer’s] questions.”51 The court concluded that the police-student
encounter was not custodial because “the officer informed [the]
child that he was not under arrest, did not have to speak and
could leave if he wanted to.”52 Moreover, the court placed some
weight on the fact that the officer, much like the officers in this
case, “was dressed in plain clothes [with] his gun . . . hidden
46 Id. at *3.
47 Id.
48 Id.
49 State ex rel. Juv. Dept. v. Loredo, 125 Or. App. 390, 865 P.2d
1312 (1993).
50 Matter of Killitz, 59 Or. App. 720, 651 P.2d 1382 (1982).
51 Loredo, supra note 49, 125 Or. App. at 394, 865 P.2d at 1315.
52 Id. at 395, 865 P.2d at 1315.
IN re INTereST OF TYLer F. 	541
Cite as 276 Neb. 527

from view under his jacket”53 and, therefore, had “clearly made
an effort to be unimposing in dress and demeanor.”54
More recently, the Wyoming Supreme Court addressed this
issue in CSC v. State.55 In CSC, officers arrived at a high
school to question a 16-year-old suspect for his part in a sexual
assault. School officials brought the suspect from his class to a
room in the school administration building where three police
officers, the school resource officer, and a school official were
waiting. The court, citing “Justice O’Connor’s reasoning”56
from her concurrence in Yarborough,57 “acknowledge[d] that
there could be instances where the suspect is so young that his
age must be considered by the police.”58 Nevertheless, the court
held, “We do not, however, feel that it applies to [the] 16-year-
old [suspect] in this case, especially in light of the fact that he
was repeatedly advised . . . that he was not under arrest, was
not obligated to answer . . . questions, and could leave at any
time.”59 Accordingly, the court concluded that “the interview
was noncustodial.”60
Tyler’s encounter with police was in all relevant aspects
indistinguishable from the encounters in In re Jason W.T.,
Loredo, and CSC. Those cases involved interrogations wherein
the juvenile suspect was not restrained and was advised by offi-
cers that he was not under arrest and could leave the interroga-
tion at any time. As was demonstrated earlier, the same is true
in this case. Moreover, the facts here are far less indicative of
custody than those present in cases where age-sensitive courts
concluded that juvenile-police encounters were custodial.
53 Id. at 392, 865 P.2d at 1313.
54 Id. at 395, 865 P.2d at 1315.
55 CSC v. State, 118 P.3d 970 (Wyo. 2005).
56 Id. at 978.
57 Yarborough, supra note 7.
58 CSC, supra note 55, 118 P.3d at 978.
59 Id. (emphasis supplied).
60 Id.
542 	276 NebrASKA rePOrTS

In Evans v. Montana Eleventh Jud. Dist. Court,61 the Montana
Supreme Court took a 14-year-old suspect’s age into account in
concluding that he was in custody for Miranda purposes. The
suspect “was questioned for two and one-half hours . . . by
two officers wearing visible badges and weapons.”62 Of note
is the fact that “[t]he officers repeatedly suggested that [the
suspect] had ‘more to tell them’ and misled him into believing
the police had fingerprints from [the victim’s] body that could
be matched to his” and that “[i]mmediately following the inter-
view, [the suspect] was arrested.”63
Similarly, in State v. Doe,64 an age-sensitive court held that a
10-year-old suspect was in custody when he “received a man-
datory directive to leave his fifth-grade class and report to the
faculty room” and “was not informed by school officials or by
the [school resource officer] that he could leave, that he did not
have to answer the officer’s questions or that he could termi-
nate the questioning at any time.”65
Finally, in State v. D.R.,66 a detective dressed in plain clothes
interviewed a 14-year-old suspect in a school administrator’s
office. In concluding that the encounter was custodial, the court
placed “significant” weight on the fact that, unlike Tyler, the
suspect “was not told he was free to leave.”67
In sum, this case is similar to cases where age-sensitive
courts found police-juvenile encounters to be noncustodial in
nature and is distinct from several cases where such courts
concluded that the juvenile was in custody. As a result, we are
confident that Tyler’s youth does not disturb the fact that his
encounter with police officers at OCHS was noncustodial. So
although we do not rule out the possibility that a suspect’s age
61 Evans v. Montana Eleventh Jud. Dist. Court, 298 Mont. 279, 995 P.2d 455
(2000).
62 Id. at 284, 995 P.2d at 458.
63 Id.
64 State v. Doe, 130 Idaho 811, 948 P.2d 166 (Idaho App. 1997).
65 Id. at 818, 948 P.2d at 173.
66 State v. D.R., 84 Wash. App. 832, 930 P.2d 350 (1997).
67 Id. at 838, 930 P.2d at 353.
IN re INTereST OF TYLer F. 	543
Cite as 276 Neb. 527

may factor into the custody assessment in a different case, it is
not necessary to resolve that issue here.
(b) Voluntariness of Tyler’s Confession
[10] Tyler’s next contention is that the prosecution failed to
carry its burden to show that he voluntarily confessed to the
officers at OCHS. The conclusion that Tyler was not in custody
when he confessed means that officers did not violate Tyler’s
Fifth Amendment right by failing to give him Miranda warn-
ings. but it does not resolve whether Tyler’s confession was
voluntary. If the confession was given involuntarily, then use
of the confession at trial violated Tyler’s 14th Amendment due
process rights.
[11-13] The prosecution has the burden to prove by a pre-
ponderance of the evidence that incriminating statements by
the accused were voluntarily given and not the product of coer-
cion.68 The factors used to determine whether an incriminating
statement was voluntarily given include whether
“(1) defendant is in custody at the time of the statement,
(2) defendant is alone and unrepresented by counsel, (3)
the promise or inducement is initiated by prosecuting
officials as opposed to defendant or someone acting on
his behalf, (4) defendant is aware of his constitutional and
other legal rights, (5) the potentially incriminating state-
ment is part of an abortive plea bargain, (6) the promise
or inducement leading to the statement is fulfilled by
prosecuting authorities, and (7) defendant is subjected to
protracted interrogation or evidence appears on the record
to show that coercion precludes the statement from being
knowing and intelligent.”69
An additional factor to consider in making this inquiry is
whether the suspect was a minor.70 Our de novo review of the
facts of this case as they relate to the above factors leads us to
conclude that Tyler’s confession was voluntary.
68 State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992).
69 Id. at 945, 492 N.W.2d at 41-42.
70 See State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).
544 	276 NebrASKA rePOrTS

We have already concluded Tyler was not in custody when
he confessed to officers. There is no credible evidence that
his confession was induced by any promises on behalf of the
police. While officers did not read Tyler his Miranda rights,
they were not required to do so because, again, Tyler was not
in custody. The police did, however, inform Tyler that he was
free to leave. Hence, Tyler was aware of all the legal rights that
the officers were required to provide for him. The interrogation
was not protracted; by all accounts, the whole encounter lasted
no more than 20 minutes.
The only facts that weigh against a finding that Tyler vol-
untarily confessed are that Tyler was alone and that he was a
minor. but our precedent shows that standing alone, these two
factors are insufficient to render a confession involuntary.71 In
State v. Garner,72 for example, police contacted a 15-year-old
murder suspect at his grandmother’s home. The suspect agreed
to accompany police to the police station for questioning. The
questioning began at 2:16 a.m. The suspect was questioned,
alone, by two officers, until he confessed to the crime at
approximately 4 a.m.
In reviewing the above facts, we held that the suspect’s
confession was voluntary and, therefore, “properly entered
into evidence.”73 We see no facts that would preclude the same
conclusion here. Accordingly, we conclude that the prosecution
met its burden to show that Tyler’s confession was voluntarily
made and was not the product of coercion.
2. A tteNtioN to tyler ’S phySiCAl S tAture
[14] In his next assignment of error, Tyler contends that the
trial court erred when it became a witness in the case for the
prosecution during the suppression hearing by taking note of
the fact that Tyler is a “large-framed young man.” The par-
ties dispute whether that fact is relevant to whether Tyler was
in custody or voluntarily confessed to authorities. We find it
71 See, State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003); Garner, supra
note 70.
72 Garner, supra note 70.
73 Id. at 51, 614 N.W.2d at 328.
IN re INTereST OF TYLer F. 	545
Cite as 276 Neb. 527

unnecessary to choose sides in this debate. As our de novo
review of both the custody and voluntariness issues shows,
it is possible to conclude that Tyler was not in custody and
voluntarily confessed without taking his physical stature into
consideration. Hence, even if the trial court acted improperly
when it took note of Tyler’s size, Tyler suffered no prejudice
as a result. We have held on countless occasions that error
without prejudice provides no ground for relief on appeal.74
This assignment is without merit.
3. motioNS to diSmiSS C ouNtS i ANd ii
In his final assignments of error, Tyler contends that the trial
court erred in failing to grant his motions to dismiss counts I
and II of the prosecution’s petition. We address Tyler’s chal-
lenge to each count separately.
(a) Count I
At trial, Tyler moved to dismiss count I of the petition
because the statute cited therein—“Neb. rev. Stat. §28-2608”—
is nonexistent. The juvenile court recognized that the petition
should have referred to § 28-608 and amended it on its own
initiative. Tyler believes that the juvenile court exceeded its
authority when it did so.
In making this argument, Tyler ignores that the erroneous
cite in the petition was accompanied by language identical
in all relevant respects to the language found in § 28-608. As
such, the accidental inclusion of a “2” in the citation could
not have misled Tyler as to the nature of the allegation against
him. Therefore, Tyler did not suffer prejudice as a result of
that clerical error.75 Again, error without prejudice provides no
ground for relief on appeal.76
(b) Count II
In his final argument, Tyler contends that the juvenile court
erred when it overruled his motion to dismiss count II of the
74 See, e.g., Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
N.W.2d 570 (2007).
75 See Tate-Smith v. Cupples, 355 Ark. 230, 134 S.W.3d 535 (2003).
76 See Betterman, supra note 74.
546 	276 NebrASKA rePOrTS

petition. Count II is an allegation for disturbing the peace in
violation of Neb. rev. Stat. § 28-1322 (reissue 1995). even
assuming he made the Internet postings, Tyler believes that this
allegation must be dismissed because it was the anonymous
male callers and visitors who actually disturbed Kimberly’s
peace, not Tyler himself.
Tyler does not really dispute that his Internet posting encour-
aged and enabled the anonymous males to contact Kimberly.
And he fails to cite any supporting authority for the proposi-
tion that one who merely encourages and enables third parties
to disturb the victim’s peace cannot himself be found guilty of
disturbing the victim’s peace under § 28-1322. Indeed, our own
precedent suggests the opposite is true.
In State v. Broadstone,77 this court discussed the free speech
implications of § 28-1322. In the course of its analysis, the
Broadstone court observed that the crime of disturbing the
peace under § 28-1322 “‘is the same as’” the common-law
crime of breaching the peace.78 The Broadstone court fur-
ther noted that one is guilty of breaching the peace whether
he actively engages in unlawful conduct himself or merely
uses speech that might encourage others to break the law.79
Broadstone supports the conclusion that Tyler can be found
guilty of disturbing Kimberly’s peace under § 28-1322 even
though he did not harass her directly. Under the rationale
implicit in that case, it is sufficient that Tyler encouraged and
enabled others to do so. Accordingly, Tyler’s argument regard-
ing count II is without merit.
VI. CONCLUSION
We conclude that the juvenile court correctly denied Tyler’s
motion to suppress incriminating statements he made to offi-
cers at OCHS. The confession was not made while Tyler was
in police custody, and therefore, it is of no consequence that
77 State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989).
78 Id. at 599, 447 N.W.2d at 33 (quoting State v. Coomes, 170 Neb. 298, 102
N.W.2d 454 (1960)).
79 See Broadstone, supra note 77 (quoting Cantwell v. Connecticut, 310 U.S.
296, 60 S. Ct. 900, 84 L. ed. 1213 (1940)).
IN re INTereST OF TYLer F. 	547
Cite as 276 Neb. 527

officers failed to advise Tyler of his Miranda rights. Moreover,
the confession was voluntarily made and not the product
of coercion.
The rest of Tyler’s arguments are also without merit. Tyler
did not suffer prejudice from the juvenile court’s decision
to take note of Tyler’s physical stature. Nor did Tyler suffer
prejudice from the court’s sua sponte decision to fix the cleri-
cal error in the petition. Finally, we conclude that Tyler could
be found to be a child defined under § 43-247(1) for disturbing
Kimberly’s peace by enabling and encouraging others to harass
her directly. Having found that all of Tyler’s assignments of
error and arguments on appeal lack merit, we affirm the juve-
nile court’s judgment.
A ffirmed .
548 	276 NebrASKA rePOrTS