State v. Damore

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. DAMORE
Cite as 320 Neb. 914
State of Nebraska, appellee, v. Stephen M.
Damore, appellant.
___ N.W.3d ___
Filed March 6, 2026. 	No. S-24-940.
1. Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
Error. In appeals from an order of the county or district court in a pend-
ing criminal case granting or denying a motion to transfer the case to
juvenile court, the ruling is reviewed for an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Judgments: Judges: Appeal and Error. A ruling that involves judicial
discretion is subject to review for an abuse thereof.
5. Judges: Words and Phrases. Discretion, when invoked as a guide to
judicial action, is a sound discretion exercised with regard to what is
right and equitable under the circumstances and the law and directed by
the reason and conscience of the judge to a just result.
6. ____: ____. In the exercise of judicial discretion, there is an abuse of
that power where the reasons and rulings of the court are clearly unten-
able and deprive a party of a substantial right clearly and fairly estab-
lished and amount to a denial of justice.
7. Judgments: Appeal and Error. When an appellate court reviews a trial
court’s ruling for an abuse of discretion, it is considering whether the
ruling exceeded the bounds of permissible choice, given the evidence
presented and the applicable law.
8. ____: ____. The abuse of discretion standard of review recognizes there
is a range of possible rulings that can be supported by the facts and
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 01:02 AM CDT

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Cite as 320 Neb. 914
governing law in a particular case, and it requires appellate courts to
defer to a trial court’s ruling so long as it falls within the realm of these
rationally available choices.
9. Words and Phrases. The various definitions of “abuse of discretion”
are intended to be flexible, not formulaic.
10. Judgments: Evidence: Appeal and Error. When an appellate court
substitutes its judgment regarding the weight of the evidence, it fails to
apply an abuse of discretion standard of review.
Petition for further review from the Court of Appeals,
Riedmann, Chief Judge, and Moore and Welch, Judges, on
appeal thereto from the District Court for Lancaster County,
Ryan S. Post, Judge. Judgment of Court of Appeals affirmed.
Eric M. Hagen, of Liberty Law Group, for appellant.
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner, for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Stacy, J.
After a fatal stabbing, the State charged Stephen M. Damore,
then 14 years old, with first degree murder and use of a
deadly weapon to commit a felony. The district court overruled
Damore’s motion to transfer the case to juvenile court, and the
Nebraska Court of Appeals affirmed. 1
Damore petitioned for further review, arguing primarily
that the Court of Appeals erred by misstating and misapplying
the applicable standard of appellate review. Damore reads the
Court of Appeals’ opinion to have articulated and applied what
he contends was an impermissibly narrow version of the abuse
of discretion standard, which he says resulted from misread-
ing this court’s opinion in State v. Jeremiah T. 2 Although we
1 See State v. Stephen D., No. A-24-940, 2025 WL 1937019 (Neb. App. July
15, 2025) (selected for posting to court website).
2 State v. Jeremiah T., 319 Neb. 133, 21 N.W.3d 313 (2025).

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STATE v. DAMORE
Cite as 320 Neb. 914
are not ultimately persuaded the Court of Appeals misstated
or misapplied the abuse of discretion standard of review, we
granted further review to address the issue.
I. BACKGROUND
On 	May 	18, 	2024, 	there 	was 	an 	altercation 	between
two groups of teenagers at a convenience store in Lincoln,
Nebraska. Damore was in one group, and 16-year-old X.S.
was in the other. During the altercation, a bottle was thrown at
the driver’s-side door of X.S.’ vehicle, causing damage. Both
groups eventually left the convenience store.
Damore returned to his residence with other members of
his group. X.S. called his mother and told her about the dam-
age to his vehicle, and she drove to Damore’s residence to
address the damage. When X.S.’ mother arrived at Damore’s
residence, an argument ensued. Shortly thereafter, X.S. arrived
at Damore’s residence, and a cell phone captured video of the
following events, as described by the Court of Appeals: “X.S.
exited a vehicle and ran towards [Damore], ‘squaring up’ and
throwing a punch at [Damore]. It appears that [Damore] then
swung at X.S. with a knife, X.S. continued to aggress, and
[Damore] struck X.S. with a knife a second time.” 3 At the end
of the same video, Damore noticed he was being recorded,
and he instructed the recording party to “delete that.” Damore
and his group then retreated into his residence while X.S.
awaited medical assistance. X.S. subsequently died from his
injuries at a hospital.
After the stabbing, the State filed a complaint against
Damore in Lancaster County Court charging him with first
degree murder and use of a deadly weapon to commit a felony.
Once the case was bound over to the district court, Damore
filed a written arraignment and waiver of physical appearance, 4
which was not included in the appellate record. Thereafter,
3 Stephen D., supra note 1, 2025 WL 1937019 at *1.
4 See Neb. Rev. Stat. § 29-4206 (Reissue 2016).

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STATE v. DAMORE
Cite as 320 Neb. 914
Damore filed a motion to transfer the case to juvenile court. 5
The timeliness of that transfer motion was not challenged, 6 and
the matter was set for an evidentiary hearing.
1. Evidentiary Hearing on
Transfer Motion
A transfer hearing was conducted over multiple days in
October and November 2024. The district court received
44 exhibits and heard testimony from five witnesses. The
exhibits included hundreds of pages of police reports and
witness statements relating to the stabbing, cell phone video
footage of the stabbing, body camera footage from the offi-
cers who responded to the scene, a recorded phone call to
the 911 emergency dispatch service, videos and images from
Damore’s social media accounts before and after the stab-
bing, and records relating to Damore’s prior criminal and
juvenile history. The court also received a copy of X.S.’
autopsy report, which showed his cause of death was two
stab wounds to the chest: one 6½ inches deep and the other
7¾ inches deep.
In addition to these exhibits, the State called two proba-
tion employees who testified about the various rehabilitative
services available to Damore in the juvenile court and his
response to such services in the past. Damore called three wit-
nesses at the transfer hearing: a psychologist who had evalu-
ated him, a licensed therapist who had been treating him, and
the relative with whom he had been living while on bond. The
testimony of all these witnesses was summarized in the Court
of Appeals’ opinion, and we do not repeat it here.
5 See Neb. Rev. Stat. §§ 29-1816(3) and 43-276 (Cum. Supp. 2024).
6 See § 29-1816(2) (accused younger than 18 years of age at time of alleged
offense may move “at any time not later than thirty days after arraignment,
unless otherwise permitted by the court for good cause shown, to waive
jurisdiction in such case to the juvenile court for further proceedings under
the Nebraska Juvenile Code”).

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STATE v. DAMORE
Cite as 320 Neb. 914
2. Order Denying Transfer
In a written order entered December 6, 2024, the district
court summarized the evidence, made specific factual findings
and credibility determinations, and separately addressed each
of the statutory factors required by § 43-276. The district court
determined that some of the statutory factors weighed in favor
of transferring the case to juvenile court, that one factor was
“neutral,” and that most factors supported retaining jurisdic-
tion in the district court.
After analyzing and balancing all the statutory factors, the
district court ultimately concluded the State had met its burden
of proving that a sound basis existed for retaining the case in
the district court, and it overruled Damore’s motion to transfer.
Per § 29-1816(4), an order granting or denying a motion to
transfer a pending criminal case to juvenile court is considered
a final order, which any party may appeal within 10 days.
Damore filed a timely notice of appeal.
3. Court of Appeals
Before the Court of Appeals, Damore assigned multiple
errors that the court consolidated and restated into one: “[T]he
district court abused its discretion in denying [Damore’s] motion
to transfer to juvenile court where the State failed to show a
sound basis existed for retention in district court, and in find-
ing that statutory factors favored retention of the case in dis-
trict court.” 7
When reciting the applicable standard of appellate review,
the Court of Appeals correctly stated:
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. Aldana Cardenas, 314
Neb. 544, 990 N.W.2d 915 (2023). An abuse of discretion
occurs when a trial court’s decision is based upon reasons
7 Stephen D., supra note 1, 2025 WL 1937019 at *5.

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STATE v. DAMORE
Cite as 320 Neb. 914
that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. Id. 8
In its analysis, the Court of Appeals elaborated on the abuse
of discretion standard. It observed the settled principle that
“[w]hen a district court’s basis for retaining jurisdiction over
a juvenile is supported by appropriate evidence, it cannot be
said that the court abused its discretion in refusing to trans-
fer the case to juvenile court.” 9 It also discussed our recent
opinion in Jeremiah T., 10 where we emphasized the difference
between conducting a de novo review and a review for abuse
of discretion. Quoting directly from Jeremiah T., the Court of
Appeals noted:
“Abuse of discretion is a highly deferential standard of
review. It is the standard applicable to reviewing a crimi-
nal sentence, where we have explained that ‘[i]t is not
the function of an appellate court to conduct a de novo
review of the record to determine whether a sentence is
appropriate’ and that ‘[t]he standard is not what sentence
we would have imposed.’ Likewise, in reviewing a trial
court’s ruling on a transfer motion, an appellate court’s
function is not to review the record de novo to determine
whether we think the case should be transferred.” 11
The Court of Appeals also quoted our admonition in Jeremiah
T. that when reviewing for an abuse of discretion, appel-
late courts are “‘not empowered to second-guess the district
court’s assessment’” of the evidence. 12 And it emphasized our
statement in Jeremiah T. that an appellate court’s review of
a district court’s transfer ruling should not articulate reasons
why it might have ruled differently, and should instead be
“limited to determining whether the trial court’s reasons and
8 Id.
9 Id. at *6 (citing State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018)).
10 Jeremiah T., supra note 2.
11 Stephen D., supra note 1, 2025 WL 1937019 at *6.
12 See id.

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rulings are clearly untenable.” 13 Finally, the Court of Appeals
quoted Jeremiah T. for the proposition that “‘untenable’”
means “‘incapable of being defended.’” 14
In conducting its appellate review, the Court of Appeals
discussed the evidence and each factor in § 43-276. The court
was critical of some of the district court’s reasoning, but it ulti-
mately concluded that it could not find an abuse of discretion
in denying the transfer motion.
The Court of Appeals therefore affirmed the district court’s
ruling denying transfer. We granted Damore’s petition for fur-
ther review to consider his assertion that the Court of Appeals
misstated and misapplied the abuse of discretion standard
of review.
II. ASSIGNMENTS OF ERROR
On 	further 	review, 	Damore 	assigns, 	consolidated 	and
restated, that the Court of Appeals erred in (1) misstating
and misapplying the abuse of discretion standard of review, (2)
conducting an improper de novo review, and (3) concluding the
district court did not abuse its discretion in denying transfer.
III. STANDARD OF REVIEW
[1] In appeals from an order of the county or district court
in a pending criminal case granting or denying a motion to
transfer the case to juvenile court, the ruling is reviewed for an
abuse of discretion. 15
[2,3] Our juvenile transfer appeals typically describe an
abuse of discretion in one of two ways. Either we state that a
judicial abuse of discretion exists if the reasons or rulings of
a trial judge are clearly untenable, unfairly depriving a litigant
13 Id. at *9. See, also, Jeremiah T., supra note 2, 319 Neb. at 145, 21 N.W.3d
at 323 (“the Court of Appeals’ review was limited to an examination for
abuse of discretion”).
14 Stephen D., supra note 1, 2025 WL 1937019 at *9.
15 See Jeremiah T., supra note 2.

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STATE v. DAMORE
Cite as 320 Neb. 914
of a substantial right and denying just results in matters sub-
mitted for disposition, 16 or we state that 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. 17
The Court of Appeals’ opinion recited the latter articula-
tion. On further review, Damore posits that this definition
contains a total of “six recognized bases that may support a
finding of abuse of discretion.” 18 He argues that each of these
“independent grounds” 19 must be separately and independently
analyzed when reviewing for an abuse of discretion, and he
reads the Court of Appeals’ opinion as having “collaps[ed]
this standard into a single inquiry [for] untenability” 20 when
it stated that its review was “limited to determining whether
the trial court’s reasons and rulings are clearly untenable.” 21
Damore argues that by focusing exclusively on what he calls
the “untenable prong” 22 of the abuse of discretion standard,
the Court of Appeals articulated and applied a standard that
was too narrow and thus “never analyzed whether the district
court’s decision was based on reasons that were unreasonable,
or whether the ruling was clearly against justice, conscience,
reason, or evidence, thereby failing to apply the proper stan-
dard of review.” 23 According to Damore, this case “presents
16 Id. Accord State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
17 See, e.g., State v. Aldana Cardenas, 314 Neb. 544, 990 N.W.2d 915
(2023); Hunt, supra note 9; State v. Bluett, 295 Neb. 369, 889 N.W.2d 83
(2016).
18 Brief for appellant in support of petition for further review at 5.
19 Supplemental brief for appellant in support of petition for further review at
2.
20 Id.
21 Stephen D., supra note 1, 2025 WL 1937019 at *9.
22 Brief for appellant in support of petition for further review at 6.
23 Id.

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an important opportunity for this Court to clarify the proper
scope of abuse-of-discretion review after Jeremiah T.” 24
Damore is correct that our juvenile transfer opinions gen-
erally recite one of two common definitions of the abuse of
discretion standard. 25 But, as we explain next, although the
wording of the definitions differs in some respects, the defini-
tions describe the same highly deferential standard of review.
IV. ANALYSIS
1. Meaning of Abuse of
Discretion Standard
Nebraska’s appellate courts have long reviewed trial courts’
discretionary rulings for an abuse of discretion. 26 We elabo-
rated on the meaning of that standard nearly a century ago, in
Pettegrew v. Pettegrew. 27
Pettegrew discussed the related concepts of “discretion”
and “abuse of discretion” in judicial decisions. Regarding the
concept of judicial discretion, Pettegrew noted that the term
itself “‘denotes the absence of a hard and fast rule,’” 28 but we
24 Supplemental brief for appellant in support of petition for further review at
13-14.
25 Compare, e.g., Aldana Cardenas, supra note 17, 314 Neb. at 549, 990
N.W.2d at 921 (“[a]n 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”),
and Hunt, supra note 9 (same), with Jeremiah T., supra note 2, 319 Neb.
at 144, 21 N.W.3d at 323 (abuse of discretion exists when “reasons or
rulings of a trial judge are clearly untenable, unfairly depriving a litigant
of a substantial right and denying just results in matters submitted for
disposition”).
26 See, e.g., Bernstien v. Brown, 23 Neb. 64, 68, 36 N.W. 359, 360 (1888)
(“[t]he question presented by the motion was largely one of discretion[;]
hence[,] the decision of the court below cannot be interfered with here,
unless there was an abuse of discretion”).
27 Pettegrew v. Pettegrew, 128 Neb. 783, 260 N.W. 287 (1935).
28 Id. at 788, 260 N.W. at 289.

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endorsed the U.S. Supreme Court’s observation that judicial
discretion “‘means a sound discretion, that is to say, a discre-
tion exercised not arbitrarily or wil[l]fully, but with regard to
what is right and equitable under the circumstances and the
law, and directed by the reason and conscience of the judge to
a just result.’” 29 Relatedly, when describing an abuse of discre-
tion, Pettegrew quoted the Iowa Supreme Court’s observation
that “‘[i]f the reasons given by the court for its action are
clearly untenable or unreasonable, if its action clearly amounts
to a denial of justice, if clearly against justice or conscience,
reason, and evidence, it has abused its discretion.’” 30
[4-6] In Pettegrew, we condensed these concepts into three
related syllabus points. One recited the principle that “[a]
ruling that involves judicial discretion is subject to review
for an abuse thereof.” 31 Another recited the principle that
“‘[d]iscretion,’ when invoked as a guide to judicial action, is
a sound discretion exercised with regard to what is right and
equitable under the circumstances and the law and directed by
the reason and conscience of the judge to a just result.” 32 And
a third syllabus point stated the principle that “[i]n the exercise
of judicial discretion, there is an abuse of that power where
the reasons and rulings of the court are clearly untenable and
deprive a party of a substantial right clearly and fairly estab-
lished and amount to a denial of justice.” 33
In the years after Pettegrew, some of our published appel-
late opinions have described the abuse of discretion standard
using language similar to the quotes found within the body of
29 Id. (quoting Langnes v. Green, 282 U.S. 531, 51 S. Ct. 243, 75 L. Ed. 520
(1931)).
30 Id. (quoting State ex rel. Fletcher v. District Court, 213 Iowa 822, 238
N.W. 290 (1931)).
31 Pettegrew, supra note 27, 128 Neb. at 783, 260 N.W. at 287 (syllabus of
the court).
32 Id.
33 Id.

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the Pettegrew opinion, 34 others have used language similar to
the syllabus points in Pettegrew, 35 and still others have used
language combining or paraphrasing the quotes and the syl-
labus points. 36 But for the past several decades, our appellate
34 See, Gutchewsky v. Ready Mixed Concrete Co., 219 Neb. 803, 805, 366
N.W.2d 751, 752-53 (1985) (“[i]f the reasons given by the court for its
action are clearly untenable or unreasonable, if its action clearly amounts
to a denial of justice, if clearly against justice or conscience, reason
and evidence, it has abused its discretion”) (internal quotation marks
omitted), disapproved on other grounds, Fidler v. Life Care Centers of
America, 301 Neb. 724, 919 N.W.2d 903 (2018); State v. Noll, 171 Neb.
831, 835-36, 108 N.W.2d 108, 111 (1961) (“[w]hen invoked as a guide
to judicial action it means a sound discretion, that is to say, a discretion
exercised not arbitrarily or wil[l]fully, but with regard to what is right
and equitable under the circumstances and the law, and directed by the
reason and conscience of the judge to a just result”) (internal quotation
marks omitted).
35 See, Guggenmos v. Guggenmos, 218 Neb. 746, 748, 359 N.W.2d 87, 90
(1984) (abuse of discretion “require[s] the reasons or rulings of the trial
judge to be clearly untenable and to deprive a party of a substantial right
such as to amount to a denial of justice”); Wagner v. State, 176 Neb.
589, 593, 126 N.W.2d 853, 856 (1964) (“‘[i]n the exercise of judicial
discretion, there is an abuse of that power where the reasons and rulings
of the court are clearly untenable and deprive a party of a substantial
right clearly and fairly established and amount to a denial of justice’”),
overruled on other grounds, Bentz v. Nebraska P.P. Dist., 211 Neb. 844,
320 N.W.2d 763 (1982).
36 See Rice v. McGrath, 162 Neb. 511, 515, 76 N.W.2d 428, 431 (1956)
(“[t]he term ‘discretion’ denotes the absence of a hard and fast rule.
When invoked as a guide to judicial action it means a sound discretion,
that is to say, a discretion exercised not arbitrarily or willfully, but with
regard to what is right and equitable under the circumstances and the law,
and directed by the reason and conscience of the judge to a just result”),
overruled on other grounds, Anoka-Butte Lumber Co. v. Malerbi, 180 Neb.
256, 142 N.W.2d 314 (1966). Accord First Trust Co. v. Thompson, 147
Neb. 366, 23 N.W.2d 339 (1946) (same). See, also, Mabry v. Mudd, 132
Neb. 610, 612, 272 N.W. 574, 575 (1937) (“‘[d]iscretion, when applied
to a court of justice, means sound discretion guided by law. It must be
governed by rule, not by humour; it must not be arbitrary, vague, and
fanciful; but legal and regular’”).

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opinions have typically described the abuse of discretion stan-
dard using one of two familiar definitions.
As already noted, sometimes we recite that 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.” 37
Other times, we recite that an abuse of discretion exists when
the “reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying
just results in matters submitted for disposition.” 38 We have
applied both definitions in a variety of different legal contexts,
and our opinions have not expressed a preference for one
definition over the other. Indeed, sometimes both definitions
appear in the same opinion. 39
It is common for courts, in Nebraska and elsewhere, to
use a variety of different definitions to describe the abuse of
37 See, e.g., In re Interest of Johnny H., ante p. 675, 697, 29 N.W.3d 808,
825 (2026). Accord, State v. Rejai, ante p. 599, 29 N.W.3d 225 (2026);
State ex rel. Douglas Cty. Sch. Dist. No. 66 v. Ewing, 319 Neb. 663, 24
N.W.3d 861 (2025). See, also, Sulzle v. Sulzle, 318 Neb. 194, 14 N.W.3d
532 (2024).
38 See, e.g., Sebade v. Sebade, ante p. 398, 432, 28 N.W.3d 19, 46 (2025).
Accord, State v. Price, ante p. 1, 26 N.W.3d 70 (2025); Henderson State
Co. v. Garrelts, 319 Neb. 485, 23 N.W.3d 444 (2025).
39 See, e.g., State v. Ramos, 319 Neb. 511, 23 N.W.3d 640 (2025), cert.
denied ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (2026); State v.
Lara, 315 Neb. 856, 2 N.W.3d 1 (2024), cert. denied ___ U.S. ___, 144 S.
Ct. 2608, 219 L. Ed. 2d 1256; State v. Cooke, 311 Neb. 511, 973 N.W.2d
658 (2022); State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019); O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903
N.W.2d 432 (2017); ACI Worldwide Corp. v. Baldwin Hackett & Meeks,
296 Neb. 818, 896 N.W.2d 156 (2017); State on behalf of Jakai C. v.
Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015); Schrag v. Spear, 290
Neb. 98, 858 N.W.2d 865 (2015).

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discretion standard. 40 There is no single, generally accepted
definition, 41 and because the facts and the law on which a rul-
ing is based will vary widely depending on the circumstances,
it is perhaps impractical to expect that a single definition could
efficiently describe all the ways in which a trial court might
abuse its discretion. 42 Although we see nothing unusual about
courts’ relying on different definitions to describe the myriad
of ways in which judicial discretion can be abused, it is per-
haps helpful to remember what an appellate court is doing
when it applies the abuse of discretion standard.
[7,8] When an appellate court reviews a trial court’s ruling
for an abuse of discretion, it is considering whether the rul-
ing “‘exceeded the bounds of permissible choice,’” 43 given
the evidence presented and the applicable law. In other words,
the abuse of discretion standard of review recognizes there is
a range of possible rulings that can be supported by the facts
and governing law in a particular case, and it requires review-
ing courts to defer to a trial court’s ruling “so long as it falls
within the realm of these rationally available choices.” 44 As
Judge Learned Hand observed, the phrase “abuse of discre-
tion” simply means that an appellate court will not reverse a
trial court’s discretionary ruling “so long as we think that the
40 See, e.g., U.S. v. Luster, 55 M.J. 67, 73 (C.A.A.F. 2001) (Crawford, C.J.,
dissenting) (noting phrase “abuse of discretion” has variety of definitions
and courts “appropriately fluctuate[]” between definitions depending on
issue being reviewed); Lambert v. Srs. of St. Joseph, 277 Or. 223, 229,
560 P.2d 262, 266 (1977) (noting wide variety of definitions for “‘abuse
of discretion’” and suggesting “[i]t is difficult to formulate a concise and
accurate definition from these cases for the reason that there is such a
factual divergency and ‘judicial discretion’ is involved in many different
circumstances”).
41 See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747
(1982).
42 See id. Accord Lambert, supra note 40.
43 See U.S. v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007).
44 See id.

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[ruling] is within permissible limits,” 45 given the facts and
the law.
We see a similar concept expressed in Pettegrew, within the
observation that sound judicial discretion is “exercised with
regard to what is right and equitable under the circumstances
and the law and directed by the reason and conscience of the
judge to a just result.” 46 The various definitions of abuse of dis-
cretion we rely upon today, which originated from Pettegrew,
are merely different ways of expressing the same foundational
principle: When a trial court fails to exercise sound judicial
discretion in light of the facts and the governing law in a par-
ticular case, there has been an abuse of discretion.
Having reviewed the development and underpinnings of
the abuse of discretion standard in Nebraska, we turn to
Damore’s arguments that the Court of Appeals misstated and
misapplied that standard in this case.
2. Did Court of Appeals Misstate or Misapply
Abuse of Discretion Standard?
Damore’s first and second assignments of error present
inconsistent theories to support his claim that the Court of
Appeals misapplied the abuse of discretion standard. Both
assignments rest on language used in the Court of Appeals’
opinion, but his first assignment argues that certain language
shows the court impermissibly narrowed the deferential abuse
of discretion standard of review, while his second assign-
ment argues that other language shows the court impermis-
sibly applied the less deferential de novo standard of review.
We address each assignment in turn and ultimately conclude
that neither is supported by a fair reading of the Court of
Appeals’ opinion.
45 Barnett v. Equitable Trust Co., 34 F.2d 916, 920 (2d Cir. 1929), modified
sub nom. U.S. v. Equitable Trust Co., 283 U.S. 738, 51 S. Ct. 639, 75 L.
Ed. 1379 (1931).
46 Pettegrew, supra note 27, 128 Neb. at 783, 260 N.W. at 287 (syllabus of
the court).

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320 Nebraska Reports
STATE v. DAMORE
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(a) Court of Appeals Did Not Narrow
Standard of Review
Damore acknowledges that the Court of Appeals expressly
stated, before conducting its analysis, that it was reviewing
the district court’s ruling for an abuse of discretion. And he
acknowledges the Court of Appeals correctly recited that
standard when it stated: “An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.” 47 But Damore argues
that because the Court of Appeals stated, near the end of its
opinion, that its review was “limited to determining whether
the trial court’s reasons and rulings are clearly untenable,” 48
it must have applied an impermissibly narrowed standard of
review. We disagree.
[9] First, we reject Damore’s premise that to correctly
apply the abuse of discretion standard, an appellate court
must separately and independently analyze each way in which
a trial court might abuse its discretion. The various defini-
tions of “abuse of discretion” are intended to be flexible, not
formulaic. The definitions should not be understood as an
exhaustive list of factors that must be analyzed in every case.
Instead, the definitions provide guidance for appellate courts
as they consider whether a trial court’s decision demonstrated
the exercise of sound discretion, or instead “‘exceeded the
bounds of permissible choice,’” 49 given the evidence and
the applicable law in the case at hand. Here, the Court of
Appeals summarized its abuse of discretion examination by
concluding that neither the district court’s factual findings
nor its transfer decision was clearly untenable. We reject
Damore’s suggestion that the appellate court was required to
engage in additional analysis.
47 Stephen D., supra note 1, 2025 WL 1937019 at *5.
48 Id. at *9.
49 McComb, supra note 43, 519 F.3d at 1053.

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STATE v. DAMORE
Cite as 320 Neb. 914
We also reject Damore’s related argument that certain state-
ments within the Court of Appeals’ opinion suggest it misread
Jeremiah T. to signal a narrowing of the familiar abuse of
discretion standard. Damore points to the following language,
appearing near the end of the Court of Appeals’ opinion, which
we italicize for emphasis:
Our review is limited to determining whether the trial
court’s reasons and rulings are clearly untenable. [State
v.] Jeremiah T., supra. To be “untenable” is to be “inca-
pable of being defended.” Id. Given this limitation on our
review, we cannot say that the district court’s factual find-
ings nor its ultimate refusal to transfer the matter to the
juvenile court was clearly untenable. 50
Damore argues, based on the italicized language above, that
the Court of Appeals read Jeremiah T. to have collapsed the
abuse of discretion standard into a single inquiry focused
only on untenability, and he argues it is “inconceivable [the
Supreme Court] intended this longstanding standard [to] be so
narrowly curtailed.” 51
[10] In Jeremiah T., we were critical of the Court of
Appeals for engaging in what appeared to be a reweighing
of the evidence and a rebalancing of the statutory juvenile
transfer factors, rather than limiting its appellate review to
whether the district court abused its discretion. We empha-
sized that when an appellate court “substitutes its judgment
regarding the weight of the evidence, it fails to apply an abuse
of discretion standard of review.” 52 Elaborating on that point,
we explained:
[I]n reviewing a trial court’s ruling on a transfer motion,
an appellate court’s function is not to review the record
de novo to determine whether we think the case should be
transferred. Here, the Court of Appeals articulated reasons
50 Stephen D., supra note 1, 2025 WL 1937019 at *9 (emphasis supplied).
51 Brief for appellant in support of petition for further review at 5.
52 Jeremiah T., supra note 2, 319 Neb. at 149, 21 N.W.3d at 325.

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STATE v. DAMORE
Cite as 320 Neb. 914
why it would have transferred the matter to juvenile
court. But an appellate court’s review is limited to deter-
mining whether the trial court’s reasons and rulings are
clearly untenable. To be “untenable” is to be “incapable
of being defended.” Neither the district court’s factual
findings nor its ultimate refusal to transfer the matter to
the juvenile court was clearly untenable. Contrary to the
Court of Appeals’ conclusion, the district court articulated
a sound basis for retaining jurisdiction. 53
Jeremiah T. therefore concluded that because the district court
had a sound basis for retaining jurisdiction, it had not abused
its discretion in overruling the motion to transfer the case to
the juvenile court, and the Court of Appeals erred in conclud-
ing otherwise.
Our discussion of untenability in Jeremiah T. did not signal
any sort of change to the abuse of discretion standard or to the
definitions typically used to describe that standard. Jeremiah
T. discussed and defined the term “untenable” because it
appears prominently in both definitions of abuse of discretion,
and our statement that “an appellate court’s review is limited
to determining whether the trial court’s reasons and rulings are
clearly untenable” 54 was merely a shorthand way to reference
the abuse of discretion standard without repeating the entire
definition. It was not intended to modify our earlier observa-
tion in Jeremiah T. that the “Court of Appeals’ review was
limited to an examination for abuse of discretion.” 55
Returning to the instant appeal, we see nothing in the Court
of Appeals’ analysis to indicate that it misunderstood our ref-
erence to untenability in Jeremiah T. or that it discerned there-
from any change to the abuse of discretion standard of review.
We reject Damore’s assertion to the contrary.
53 Id. at 152, 21 N.W.3d at 327.
54 Id.
55 Id. at 145, 21 N.W.3d at 323.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. DAMORE
Cite as 320 Neb. 914
(b) Court of Appeals Did Not
Conduct De Novo Review
In his second assignment of error, Damore contends that the
Court of Appeals “[c]onducted an improper de novo [r]eview
of the [r]ecord” 56 when addressing some of the statutory fac-
tors. He argues that although the appellate court said it was
applying an abuse of discretion standard, it occasionally “re-
analyzed the factors set forth in . . . § 43-276, drawing its own
independent conclusions.” 57
Damore’s argument rests largely on semantics. He directs
us to several places in the Court of Appeals’ analysis where
he contends it used language that “mirrored a de novo review
and engaged in independent fact-finding rather than review-
ing the district court’s reasoning under the abuse of discre-
tion standard.” 58
We acknowledge that the Court of Appeals occasionally
used reweighing language in its opinion and appeared to
state its own conclusions about how the evidence should be
weighed rather than analyzing the district court’s reasoning.
It would not be unusual for an appellate court to employ
some reweighing language in an opinion reviewing a juve-
nile court’s transfer ruling because in such cases, the appel-
late court is required to review the juvenile court’s decision
“de novo on the record for an abuse of discretion,” 59 and
under such a standard of review, the appellate court “do[es]
not defer to the findings of the trial judge in determining
whether there has been an abuse of discretion, but, rather,
make[s its] own appraisal of the record to determine whether
56 Brief for appellant in support of petition for further review at 9.
57 Id. at 10.
58 Id. at 13.
59 In re Interest of Aaden S., ante p. 785, 800, 30 N.W.3d 668, 681 (2026)
(appellate court reviews juvenile court’s decision to transfer juvenile
offender’s case to county or district court de novo on record for abuse of
discretion). Accord In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d
391 (2018) (same).

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STATE v. DAMORE
Cite as 320 Neb. 914
the results obtained are untenable such as to have denied
justice.” 60 But in appeals like this one, where the appellate
court is required to review a district court’s transfer ruling
for an abuse of discretion, we have strongly cautioned against
employing reweighing language and have explained that it
has no proper place in an appellate court’s analysis. 61 And we
agree with Damore that reweighing language should not have
been employed here.
But when we consider the Court of Appeals’ opinion in its
entirety, we are not persuaded that the use of such language
was pervasive, and, more importantly, we see no indication
that the appellate court abandoned the abuse of discretion stan-
dard and instead conducted a de novo review. On this record,
Damore’s second assignment of error does not provide a basis
for reversal.
3. Court of Appeals Did Not Err in
Finding No Abuse of Discretion
Finally, Damore assigns that the Court of Appeals erred in
its ultimate conclusion that the trial court did not abuse its
discretion in denying his transfer motion. We understand the
primary thrust of his argument to be that this conclusion was
erroneous because it was premised on a misapplication of
the proper standard of review. Because we have already con-
cluded the Court of Appeals neither misstated nor misapplied
the familiar abuse of discretion standard, we likewise reject
Damore’s third assignment of error to the extent it rests on an
alleged misapplication of the standard of review.
And to the extent Damore can be understood to argue that
even if the Court of Appeals applied the correct standard of
review, it nevertheless erred in not finding an abuse of dis-
cretion on this record, we cannot agree. It is not necessary
to engage in an exhaustive analysis of the record, the trial
60 Guggenmos, supra note 35, 218 Neb. at 748, 359 N.W.2d at 90.
61 See Jeremiah T., supra note 2.

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STATE v. DAMORE
Cite as 320 Neb. 914
court’s reasoning, or the Court of Appeals’ analysis. It suf-
fices to say that, having considered the applicable law and the
evidence adduced at the transfer hearing, including the trial
court’s findings relating to weight and credibility and its bal-
ancing of the various statutory factors, we see no error in the
Court of Appeals’ ultimate conclusion that the district court
did not abuse its discretion in denying the motion to transfer.
On this record, the district court’s ruling was well within
the bounds of sound discretion and permissible choice, given
the evidence and the applicable law. Damore’s third assign-
ment of error is not supported by the record.
V. CONCLUSION
For the foregoing reasons, we reject Damore’s arguments
that the Court of Appeals misstated and misapplied the abuse
of discretion standard when reviewing the district court’s rul-
ing denying transfer to the juvenile court, and we see no error
in the Court of Appeals’ ultimate conclusion that the district
court’s denial of the motion to transfer was not an abuse of
discretion. On further review, the Court of Appeals’ decision
is affirmed.
Affirmed.