In this appeal
of a juvenile court’s actions, adjudicating a juvenile and
terminating the juvenile’s parental rights, the Nebraska Court
of Appeals affirms the termination. The Court also found that regarding
the juvenile court’s denial of the biological father’s
motion for visitation with the juvenile, the appeal was not timely
filed, so the trial court’s actions were unaffected.
In
re Interest of Hailey M., 15 Neb. App. 323 (2007)
ELaw
Headnotes (Not Prepared by Court)
Juvenile
Courts:
- [Evidence:]
(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. When the evidence
is in conflict, however, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted one
version of the facts over the other.
- [Jurisdiction:]
(Appeal and Error.) In a juvenile case, as in any other appeal,
before reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has jurisdiction
over the matter before it. (Proof.) At the adjudication stage
of a dependency proceeding, for a juvenile court to assume jurisdiction
of minor children, the State must prove the allegations of the petition
by a preponderance of the evidence. (Words and Phrases.)
The juvenile court is a "court of competent jurisdiction"
to make a determination regarding whether the exceptions under Neb.
Rev. Stat. § 43-283.01(4)(b) (Reissue 2004) apply to excuse
reasonable efforts to reunify.
- [Final
Orders:] (Time: Appeal and Error.) Although dispositional orders
of a juvenile court are final, appealable orders, if an order is
not new, but merely a continuation of a previous order, it does
not extend the time for appeal.
Parental
Rights.
- Parental rights
may be terminated when the parents have substantially and continuously
or repeatedly neglected and refused to give the juvenile or a sibling
of the juvenile necessary parental care and protection.
- [Evidence:]
(Proof.) The standard for termination of parental rights is
clear and convincing evidence.
Criminal
Law:
- [Parental
Rights.] Termination of parental rights is justified if a parent
has committed murder of another child of the parent; committed voluntary
manslaughter of another child of the parent; aided or abetted, attempted,
conspired, or solicited to commit murder, or aided or abetted voluntary
manslaughter of the juvenile or another child of the parent; or
committed a felony assault that resulted in serious bodily injury
to the juvenile or another minor child of the parent.
- [Aiding
and Abetting:] (Intent: Other Acts.) One who intentionally aids
and abets the commission of a crime may be responsible not only
for the intended crime, if it is in fact committed, but also for
other crimes which are committed as a natural and probable consequence
of the intended criminal act.
Aiding and
Abetting:
- [Proof.]
Aiding and abetting requires some participation in a criminal act
which must be evidenced by word, act, or deed, and mere encouragement
or assistance is sufficient to make one an aider or abettor. No
particular acts are necessary, nor is it necessary that the defendant
take physical part in the commission of the crime or that there
was an express agreement to commit the crime. •••
Evidence of mere presence, acquiescence, or silence is not enough
to sustain the State's burden of proving guilt under an aiding and
abetting theory.
Date Filed
and Case No.: January 16, 2007. No. A-06-692.
Court Appealed
From: Separate Juvenile Court of Lancaster County: Thomas B.
Dawson, Judge.
Attorneys
for the Appeal: Steve Williams for Theodore M., intervenor-appellant
and cross-appellee. Gary Lacey, Michelle A. Paxton, Lori A. Maret,
and Henry L. Wiedrich, Senior Certified Law Student, for State of
Nebraska, appellee and cross-appellee. Jason L. Scott and Mark Buckwalter,
Senior Certified Law Student, of Pierson, Fitchett, Hunzeker, Blake
& Katt, for Tammy C., appellee and cross-appellant.
Judges:
Sievers, Carlson, and Cassel, Judges.
Authored
By: Carlson, Judge.
Summary:
Theodore M. appealed from an order of the juvenile court of
Lancaster County overruling his motion for visitation with his daughter
Hailey and his request to place Hailey with relatives. Tammy C.,
Hailey's mother, cross-appealed from an order adjudicating Hailey
to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2004) and terminating Tammy's parental rights to Hailey.
The court also found that the State was not required to use reasonable
efforts to reunify Hailey with Tammy.
Hailey was born
to Theodore and Tammy on 10/29/05 and the State removed Hailey from
Tammy's care on October 30. On 11/17/05 the State filed § 43-247(3)(a)
petition alleging that Hailey lacked proper parental care by reason
of the faults or habits of Tammy. Specifically, the petition alleged
that in November of 1996, Tammy committed felony child abuse resulting
in serious bodily injury to another one of her children, Christopher
C. (d.o.b. 08/07/95.) The State alleged that these circumstances
placed Hailey at risk of harm and requested an order eliminating
the requirement for reasonable efforts to "preserve and reunify
[Hailey] with [Tammy]," alleging that Tammy committed the first
or second degree murder or voluntary manslaughter of Christopher;
aided or abetted, attempted, conspired, or solicited to commit the
murder of Christopher; aided or abetted the voluntary manslaughter
of Christopher; committed a felony assault of Christopher which
resulted in serious bodily injury to Christopher; or aided or abetted
such a felony assault of Christopher. The State also sought termination
of Tammy's parental rights under Neb. Rev. Stat. § 43-292(2)
and (10) (Reissue 2004) alleging that Tammy had substantially and
continuously or repeatedly neglected and refused to give one of
Hailey's siblings necessary care and protection in that against
Christopher, Tammy committed the murder or voluntary manslaughter.
The State also alleged that termination of Tammy's parental rights
was in Hailey's best interests.
On 11/23/05,
Theodore filed and was granted a motion for leave to intervene,
stating that he is Hailey's biological father. Theodore also filed
a motion seeking visitation with Hailey which the court set for
hearing. After the hearing, the court overruled that motion, finding
that because Theodore is incarcerated, visitation between Hailey
and Theodore is not in Hailey's best interests. On 04/17/06, Theodore
filed another motion requesting visitation with Hailey and further
requesting that the court place Hailey with one of three people.
The court overruled Theodore's motion for a change in Hailey's placement
as well as Theodore's request for visitation.
Hearings on
Hailey's adjudication, the termination of Tammy's parental rights,
and the State's motion to eliminate the requirement of reasonable
efforts to reunify were held The record showed that in December
1996, the State charged Tammy with one count of manslaughter and
two counts of child abuse. Tammy later entered into a plea agreement
in which she would plead guilty to one count of child abuse, a Class
III felony. The charge to which Tammy pled stated she knowingly
or intentionally caused or permitted Christopher . . . to be: (a)
placed in a situation that endangered his life or health; or (b)
cruelly confined or cruelly punished; or (c) deprived of necessary
care; and [this] resulted in serious bodily injury to Christopher
. . . ." Tammy was sentenced to 5 to 12 years in prison. The
trial court found that Hailey is a child as defined by § 43-247(3)(a)
because Tammy's conduct as it related to Christopher was of such
a nature as to place Hailey at risk of harm. The trial court stated
that Tammy either was aware that her boyfriend, Harold T., was inflicting
injury upon Christopher, or that she should have been aware that
this was occurring. Acknowledging the State's assertion that reasonable
efforts to reunify Hailey with Tammy would be contrary to Hailey's
best interests and would be contrary to the paramount concern of
Hailey's health and safety, the court found by clear and convincing
evidence that the requirement for reasonable efforts to preserve
and reunify Hailey with Tammy should be eliminated because Tammy
committed the crimes alleged in the petition against Christopher.
The court further found by clear and convincing evidence that Tammy's
parental rights should be terminated under § 43-292(2) and
(10) and that termination of Tammy's parental rights is in Hailey's
best interests. Theodore appealed, and Tammy cross-appealed to the
Nebraska Court of Appeals.
In his appeal,
Theodore contended that the trial court erred in (1) overruling
his motion for visitation with Hailey and (2) failing to order the
Department to consider "any and all relative placements for
Hailey." In her cross-appeal, Tammy argued that the trial court
erred in finding that (1) Hailey is a child as defined in §
43-247(3)(a), (2) termination of Tammy's parental rights is warranted
under § 43-292(2) and (10), (3) termination of her parental
rights is in Hailey's best interests, and (4) the State is not required
to use reasonable efforts to reunify her with Hailey.
Regarding Theodore,
the Nebraska Court of Appeals noted that the order denying Theodore’s
motion of his 04/17/06 motion, was not the first time the court
overruled a motion by Theodore for visitation with Hailey. The court
denied Theodore's first motion for visitation in January and that
order clearly affected one of Theodore's substantial rights. Theodore
did not file an appeal from that order, but subsequently filed the
second motion for visitation, which the trial court also overruled.
It was from this second order that Theodore appealed and the Court
found that this appeal was simply an attempt to appeal after the
time for an appeal had expired. Given that the court's second order
denying Theodore visitation was merely a continuation of the original
order, the Court concluded that this order did not affect one of
Theodore's substantial rights, and therefore, it lacked jurisdiction
to consider Theodore's claim that the trial court erred in denying
him visitation. “This assignment of error is without merit”
they wrote.
Theodore also
argued that the trial court erred in failing to order the Department
to consider any and all relative placements for Hailey. After reviewing
the record, the Court concluded that given the evidence that the
Department of Health and Human Services was in the process of considering
Theodore's sister as a placement for Hailey, the trial court did
not err in failing to order the Department to consider "any
and all relative placements for Hailey."
Similarly, as
to Tammy's cross-appeal, the Court concluded that the trial court
did not err in finding that Hailey is a child as defined in §
43-247(3)(a) or in finding that termination of Tammy's parental
rights to Hailey is warranted under § 43-292(10). Additionally,
the trial court did not err in finding that the State is not required
to use reasonable efforts to reunify Tammy with Hailey. “Therefore,
we affirm the trial court's order in its entirety.” AFFIRMED.
Juvenile
Court, Termination of Parental Rights, Appeal and Error
In this appeal
of a juvenile court’s actions, adjudicating a juvenile and
terminating the juvenile’s parental rights, the Nebraska Court
of Appeals affirms the termination. The Court also found that regarding
the juvenile court’s denial of the biological father’s
motion for visitation with the juvenile, the appeal was not timely
filed, so the trial court’s actions were unaffected.
In
re Interest of Hailey M., 15 Neb. App. 323 (2007)
ELaw
Headnotes (Not Prepared by Court)
Juvenile
Courts:
- [Evidence:]
(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. When the evidence
is in conflict, however, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted one
version of the facts over the other.
- [Jurisdiction:]
(Appeal and Error.) In a juvenile case, as in any other appeal,
before reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has jurisdiction
over the matter before it. (Proof.) At the adjudication stage
of a dependency proceeding, for a juvenile court to assume jurisdiction
of minor children, the State must prove the allegations of the petition
by a preponderance of the evidence. (Words and Phrases.)
The juvenile court is a "court of competent jurisdiction"
to make a determination regarding whether the exceptions under Neb.
Rev. Stat. § 43-283.01(4)(b) (Reissue 2004) apply to excuse
reasonable efforts to reunify.
- [Final
Orders:] (Time: Appeal and Error.) Although dispositional orders
of a juvenile court are final, appealable orders, if an order is
not new, but merely a continuation of a previous order, it does
not extend the time for appeal.
Parental
Rights.
- Parental rights
may be terminated when the parents have substantially and continuously
or repeatedly neglected and refused to give the juvenile or a sibling
of the juvenile necessary parental care and protection.
- [Evidence:]
(Proof.) The standard for termination of parental rights is
clear and convincing evidence.
Criminal
Law:
- [Parental
Rights.] Termination of parental rights is justified if a parent
has committed murder of another child of the parent; committed voluntary
manslaughter of another child of the parent; aided or abetted, attempted,
conspired, or solicited to commit murder, or aided or abetted voluntary
manslaughter of the juvenile or another child of the parent; or
committed a felony assault that resulted in serious bodily injury
to the juvenile or another minor child of the parent.
- [Aiding
and Abetting:] (Intent: Other Acts.) One who intentionally aids
and abets the commission of a crime may be responsible not only
for the intended crime, if it is in fact committed, but also for
other crimes which are committed as a natural and probable consequence
of the intended criminal act.
Aiding and
Abetting:
- [Proof.]
Aiding and abetting requires some participation in a criminal act
which must be evidenced by word, act, or deed, and mere encouragement
or assistance is sufficient to make one an aider or abettor. No
particular acts are necessary, nor is it necessary that the defendant
take physical part in the commission of the crime or that there
was an express agreement to commit the crime. •••
Evidence of mere presence, acquiescence, or silence is not enough
to sustain the State's burden of proving guilt under an aiding and
abetting theory.
Date Filed
and Case No.: January 16, 2007. No. A-06-692.
Court Appealed
From: Separate Juvenile Court of Lancaster County: Thomas B.
Dawson, Judge.
Attorneys
for the Appeal: Steve Williams for Theodore M., intervenor-appellant
and cross-appellee. Gary Lacey, Michelle A. Paxton, Lori A. Maret,
and Henry L. Wiedrich, Senior Certified Law Student, for State of
Nebraska, appellee and cross-appellee. Jason L. Scott and Mark Buckwalter,
Senior Certified Law Student, of Pierson, Fitchett, Hunzeker, Blake
& Katt, for Tammy C., appellee and cross-appellant.
Judges:
Sievers, Carlson, and Cassel, Judges.
Authored
By: Carlson, Judge.
Summary:
Theodore M. appealed from an order of the juvenile court of
Lancaster County overruling his motion for visitation with his daughter
Hailey and his request to place Hailey with relatives. Tammy C.,
Hailey's mother, cross-appealed from an order adjudicating Hailey
to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2004) and terminating Tammy's parental rights to Hailey.
The court also found that the State was not required to use reasonable
efforts to reunify Hailey with Tammy.
Hailey was born
to Theodore and Tammy on 10/29/05 and the State removed Hailey from
Tammy's care on October 30. On 11/17/05 the State filed § 43-247(3)(a)
petition alleging that Hailey lacked proper parental care by reason
of the faults or habits of Tammy. Specifically, the petition alleged
that in November of 1996, Tammy committed felony child abuse resulting
in serious bodily injury to another one of her children, Christopher
C. (d.o.b. 08/07/95.) The State alleged that these circumstances
placed Hailey at risk of harm and requested an order eliminating
the requirement for reasonable efforts to "preserve and reunify
[Hailey] with [Tammy]," alleging that Tammy committed the first
or second degree murder or voluntary manslaughter of Christopher;
aided or abetted, attempted, conspired, or solicited to commit the
murder of Christopher; aided or abetted the voluntary manslaughter
of Christopher; committed a felony assault of Christopher which
resulted in serious bodily injury to Christopher; or aided or abetted
such a felony assault of Christopher. The State also sought termination
of Tammy's parental rights under Neb. Rev. Stat. § 43-292(2)
and (10) (Reissue 2004) alleging that Tammy had substantially and
continuously or repeatedly neglected and refused to give one of
Hailey's siblings necessary care and protection in that against
Christopher, Tammy committed the murder or voluntary manslaughter.
The State also alleged that termination of Tammy's parental rights
was in Hailey's best interests.
On 11/23/05,
Theodore filed and was granted a motion for leave to intervene,
stating that he is Hailey's biological father. Theodore also filed
a motion seeking visitation with Hailey which the court set for
hearing. After the hearing, the court overruled that motion, finding
that because Theodore is incarcerated, visitation between Hailey
and Theodore is not in Hailey's best interests. On 04/17/06, Theodore
filed another motion requesting visitation with Hailey and further
requesting that the court place Hailey with one of three people.
The court overruled Theodore's motion for a change in Hailey's placement
as well as Theodore's request for visitation.
Hearings on
Hailey's adjudication, the termination of Tammy's parental rights,
and the State's motion to eliminate the requirement of reasonable
efforts to reunify were held The record showed that in December
1996, the State charged Tammy with one count of manslaughter and
two counts of child abuse. Tammy later entered into a plea agreement
in which she would plead guilty to one count of child abuse, a Class
III felony. The charge to which Tammy pled stated she knowingly
or intentionally caused or permitted Christopher . . . to be: (a)
placed in a situation that endangered his life or health; or (b)
cruelly confined or cruelly punished; or (c) deprived of necessary
care; and [this] resulted in serious bodily injury to Christopher
. . . ." Tammy was sentenced to 5 to 12 years in prison. The
trial court found that Hailey is a child as defined by § 43-247(3)(a)
because Tammy's conduct as it related to Christopher was of such
a nature as to place Hailey at risk of harm. The trial court stated
that Tammy either was aware that her boyfriend, Harold T., was inflicting
injury upon Christopher, or that she should have been aware that
this was occurring. Acknowledging the State's assertion that reasonable
efforts to reunify Hailey with Tammy would be contrary to Hailey's
best interests and would be contrary to the paramount concern of
Hailey's health and safety, the court found by clear and convincing
evidence that the requirement for reasonable efforts to preserve
and reunify Hailey with Tammy should be eliminated because Tammy
committed the crimes alleged in the petition against Christopher.
The court further found by clear and convincing evidence that Tammy's
parental rights should be terminated under § 43-292(2) and
(10) and that termination of Tammy's parental rights is in Hailey's
best interests. Theodore appealed, and Tammy cross-appealed to the
Nebraska Court of Appeals.
In his appeal,
Theodore contended that the trial court erred in (1) overruling
his motion for visitation with Hailey and (2) failing to order the
Department to consider "any and all relative placements for
Hailey." In her cross-appeal, Tammy argued that the trial court
erred in finding that (1) Hailey is a child as defined in §
43-247(3)(a), (2) termination of Tammy's parental rights is warranted
under § 43-292(2) and (10), (3) termination of her parental
rights is in Hailey's best interests, and (4) the State is not required
to use reasonable efforts to reunify her with Hailey.
Regarding Theodore,
the Nebraska Court of Appeals noted that the order denying Theodore’s
motion of his 04/17/06 motion, was not the first time the court
overruled a motion by Theodore for visitation with Hailey. The court
denied Theodore's first motion for visitation in January and that
order clearly affected one of Theodore's substantial rights. Theodore
did not file an appeal from that order, but subsequently filed the
second motion for visitation, which the trial court also overruled.
It was from this second order that Theodore appealed and the Court
found that this appeal was simply an attempt to appeal after the
time for an appeal had expired. Given that the court's second order
denying Theodore visitation was merely a continuation of the original
order, the Court concluded that this order did not affect one of
Theodore's substantial rights, and therefore, it lacked jurisdiction
to consider Theodore's claim that the trial court erred in denying
him visitation. “This assignment of error is without merit”
they wrote.
Theodore also
argued that the trial court erred in failing to order the Department
to consider any and all relative placements for Hailey. After reviewing
the record, the Court concluded that given the evidence that the
Department of Health and Human Services was in the process of considering
Theodore's sister as a placement for Hailey, the trial court did
not err in failing to order the Department to consider "any
and all relative placements for Hailey."
Similarly, as
to Tammy's cross-appeal, the Court concluded that the trial court
did not err in finding that Hailey is a child as defined in §
43-247(3)(a) or in finding that termination of Tammy's parental
rights to Hailey is warranted under § 43-292(10). Additionally,
the trial court did not err in finding that the State is not required
to use reasonable efforts to reunify Tammy with Hailey. “Therefore,
we affirm the trial court's order in its entirety.” AFFIRMED.
Constitutional Law, Fetal Homicide, Challenge to Constitutionality
The Nebraska
Court of Appeals here affirms convictions and sentences for two
counts of murder in the second degree and two counts of use of a
deadly weapon to commit a felony in the slaying of a mother and
her unborn child.
State
v. Moss (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Constitutionality
of Statute:] This court cannot determine the constitutionality
of a statute, yet when necessary to a decision in the case before
us, we do have jurisdiction to determine whether a constitutional
question has been properly raised. In re Interest of Jeffrey
K., 14 Neb. App. 818, 717 N.W.2d 499 (2006); State v. Johnson,
12 Neb. App. 247, 670 N.W.2d 802 (2003).
- [Motion
to Suppress:] An appellate court will uphold the trial court's
ruling on a motion to suppress unless the trial court's findings
of fact are clearly erroneous. In making this determination, the
appellate court does not reweigh the evidence or resolve conflicts
in the evidence, but, rather, recognizes the trial court as the
finder of fact and considers the trial court observed the witnesses
testifying in regard to such motions. State v. Ball, 271
Neb. 140, 710 N.W.2d 592 (2006).
- [Sufficiency
of the Evidence:] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Barfield, 272 Neb. 502, 723
N.W.2d 303 (2006).
- [Motion
for New Trial:] In a criminal case, a motion for new trial is
addressed to the discretion of the trial court, and unless an abuse
of discretion is shown, the trial court's determination will not
be disturbed. State v. Lykens, 271 Neb. 240, 710 N.W.2d 844
(2006).
- [Sentencing:]
A sentence imposed within statutory limits will not be disturbed
on appeal absent an abuse of discretion by the trial court. State
v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006). An abuse of
discretion occurs when a sentencing court's reasons or rulings are
clearly untenable and unfairly deprive the litigant of a substantial
right and a just result. Id.
Motion to
Suppress:
- In Davis
v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed.
2d 362 (1994), the U.S. Supreme Court held that invocation of the
Miranda right to counsel required a suspect to unambiguously request
counsel. This court recognized that holding in In re Interest
of Frederick C., 8 Neb. App. 343, 594 N.W.2d 294 (1999), and
following the majority of jurisdictions which had considered the
issue, we held that the Davis "clear articulation rule"
was applicable to invocations of the Miranda right to remain silent.
As to whether the police have a duty to clarify answers, we stated,
"If the accused's statement is ambiguous or unequivocal, the
police officer has no duty to clarify the suspect's intent, and
the officer may proceed with the interrogation." In re Interest
of Frederick C., 8 Neb. App. at 352, 594 N.W.2d at 302.
Jurisdiction:
- Jurisdiction
is the inherent power or authority to decide a case; venue is the
place of trial of an action--the site where the power to adjudicate
is to be exercised. State ex rel. Bauersachs v. Williams,
215 Neb. 757, 340 N.W.2d 431 (1983).
- [Burden:]
In Nebraska, in the absence of a defendant's waiver of venue, the
State has the burden to prove proper venue beyond a reasonable doubt.
State v. Gorman, 232 Neb. 738, 441 N.W.2d 896 (1989). The
venue provision found at Neb. Rev. Stat. § 29-1301.01 (Reissue
1995) provides that [an]
accused person may be tried in the county in which the offense is
committed, or in any county into or out of which the person upon
whom the offense was committed may, in the prosecution of the offense,
have been brought, or in which an act is done by the accused in
instigating, procuring, promoting, or aiding in the commission of
the offense.
Motion for
New Trial:
- [Statute:]
According to Neb. Rev. Stat. § 29-2103(3) (Cum. Supp. 2006),
"[a] motion for new trial based on the grounds set forth in
subdivision (1), (2), (3), (4), or (7) of section 29-2101 shall
be filed within ten days after the verdict was rendered unless such
filing is unavoidably prevented . . ." Section 29-2103, by
its terms, is mandatory; a motion for new trial not filed in conformity
with the statutory requirements as to time may not be considered
by an appellate court on review. See State v. Thompson, 244
Neb. 375, 507 N.W.2d 253 (1993).
- [Words
and Phrases:] The Nebraska Supreme Court has interpreted the
phrase "unavoidably prevented" in § 29-2103 as referring
to circumstances beyond the control of the party filing the motion
for new trial. See, State v. Thompson, 246 Neb. 752, 523
N.W.2d 246 (1994); State v. Hawkman, 198 Neb. 578, 254 N.W.2d
90 (1977). The law requires diligence, and mere neglect will not
entitle a party to relief. Id.
Sentencing:
- In considering
a sentence to be imposed, the sentencing court is not limited in
its discretion to any mathematically applied set of factors. State
v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006). The appropriateness
of a sentence is necessarily a subjective judgment and includes
the sentencing judge's observation of the defendant's demeanor and
attitude and all the facts and circumstances surrounding the defendant's
life. State v. Lassek, supra ••• Factors a
judge should consider in imposing a sentence include the defendant's
age, mentality, education, experience, and social and cultural background,
as well as his or her past criminal record or law-abiding conduct,
motivation for the offense, nature of the offense, and the amount
of violence involved in the commission of the crime. State v.
Aldaco, supra.
- [Other
Cases:] It is difficult to color-match cases when reviewing
the terms of sentences. State v. Haynie, 239 Neb. 478, 476
N.W.2d 905 (1991); State v. Rivera, 14 Neb. App. 590, 711
N.W.2d 573 (2006). It is not the function of an appellate court
to conduct a de novo review of the record to determine whether a
sentence is appropriate. State v. Rivera, supra.; State v. Aldaco,
supra.
Date Filed
and Case No.: January 16, 2007. No. A-05-1132.
Court Appealed
From: District Court for Douglas County: J. Patrick Mullen,
Judge.
Attorneys
for the Appeal: Christopher J. Lathrop for Bobby J. Moss, appellant.
Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.
Judges:
Sievers, Carlson, and Cassel, Judges.
Authored
By: Cassel, Judge.
Summary:
The State filed an amended information on 03/17/05, charging Bobby
J. Moss with two counts of murder in the second degree and two counts
of use of a deadly weapon to commit a felony, arising out of acts
occurring on approximately 12/04/03 against Michelle Harlan and
her unborn child. A bench trial commenced on 05/31/05 and after
hearing evidence on 06/03/05, the court entered a verdict adjudging
Moss guilty of murder in the second degree of Harlan, use of a weapon
to commit a felony as to the murder of Harlan, and manslaughter
of Harlan's unborn child. The court sentenced Moss to 50 to 70 years'
imprisonment for murder in the second degree, 5 to 10 years' imprisonment
for use of a weapon, and 10 to 20 years' imprisonment for manslaughter,
all sentences to run consecutively. Moss filed a motion for new
trial, alleging that the actions of the prosecuting attorney prevented
him from having a fair trial and that the verdict was not sustained
by sufficient evidence or was contrary to the law. Following a hearing,
the court overruled the motion. Moss appeal to the Nebraska Court
of Appeals.
Moss alleged
that the district court erred (1) in failing to find Neb. Rev. Stat.
§ 28-392 (Cum. Supp. 2006) unconstitutionally vague and overbroad,
(2) in overruling his motion to suppress, (3) in finding him guilty
beyond a reasonable doubt and finding appropriate jurisdiction,
(4) in overruling his motion for new trial, and (5) in imposing
excessive sentences.
Regarding
assignment (1): Moss argues that § 28-392 is unconstitutionally
vague and overbroad, both on its face and as applied to Moss. The
State responds that Moss did not challenge the statute at the district
court level and that the record did not reflect a motion to quash
or the notice required by court rule. The Court found that while
it could not decide on the constitutionality of the statute, Moss
properly presented the constitutional issue to the district court.
However, the record did not show that Moss complied with rule 9E
of the Rules of the Nebraska Supreme Court, which requires in part
that when filing a brief, a party alleging unconstitutionality of
a federal or state statute must file and serve a separate written
notice of the challenge to the statute with the Clerk of the Supreme
Court. Because Moss did not comply with this requirement, the constitutional
challenge to § 28-392 had not been properly preserved for appellate
review.
Regarding
assignment (2): Moss argued on appeal that his statement, which
was memorialized in a videotape and received into evidence during
trial, should have been suppressed for several reasons. 1) No waiver
of his right to remain silent or his right to counsel- the district
court found that the videotape of Moss' statement showed he waived
those rights and the Court found that the district court's factual
findings were not clearly erroneous. 2) He was coerced into making
a statement through physical intimidation - the district court stated
that the videotape showed an incident where Moss, while alone in
the interview room, stood on the table and overturned it, leading
to a heated exchange when officers returned to the room (which lasted
less than a minute.) The court stated that there was no threat,
coercion, or undue influence flowing from the incident. The court
found, under the totality of the circumstances, that Moss knowingly,
voluntarily, and intelligently waived his privilege against self-incrimination.
The Court said the district court's factual findings were not clearly
erroneous. 3) Coercion by promises made to him. The court stated
that the officers' denying Moss the opportunity to speak to his
wife until the interrogation process was finished was not coercion
for Moss to confess to the crime. The court further found no benefit
offered to Moss in exchange for his statement and that his statement
was voluntary. The Court again found that the court's factual findings
were not clearly erroneous.
Because the
district court's findings of fact on the motion to suppress were
not clearly erroneous, the Court upheld the overruling of Moss'
motion to suppress and the admission of the statement into evidence
during trial.
Regarding
assignment (3): Moss argues that the evidence was insufficient
to convict him of second degree murder of Harlan or of manslaughter
of the fetus. He also alleged that the evidence was insufficient
to show that Harlan was killed in Douglas County. We conclude that
this assignment of error is without merit. In convicting Moss of
second degree murder, the district court found that Moss shot Harlan
based on Moss' statement, which was corroborated by physical evidence.
The court did not find the self-defense claim to be credible, recognizing
that Harlan was shot three times in the back and that there was
no allegation that Harlan was armed. The court found no deadly force
threatened against Moss. The Court could not say that the district
court's findings were clearly erroneous.
Moss next argued
that he should not have been convicted of manslaughter, because
there was insufficient proof that he killed the fetus without malice
upon a sudden quarrel or that the fetus was alive at the time of
Harlan's death. The court observed that two photographs of Harlan
depicted she was pregnant and that Moss did not present an argument
that he did not know Harlan was pregnant. No evidence was presented
to contradict the expert testimony that the fetus was viable and
that the death of the fetus was caused by Harlan's death. The evidence
sufficiently established that Moss unintentionally killed the fetus
in the commission of Harlan's murder. The Court ruled that the district
court's findings with regard to the manslaughter conviction were
not clearly erroneous.
Finally, Moss
alleged that the court erred in finding appropriate jurisdiction.
The Court reased that even if Moss shot Harlan somewhere other than
Douglas County, the presence of blood and one of her shoes on the
rocks leading up to Carter Lake were sufficient to show that her
body was ultimately disposed of--and it was in fact found--on the
Douglas County side of the lake. “We conclude that venue in
Douglas County was proper.”
Regarding
assignment (4): Moss argues on appeal that the court erred in
not granting him a new trial based on prosecutorial misconduct and
on the admission of hearsay testimony. The Court first considered
the timeliness of Moss' motion. The court entered its verdict on
June 3, 2005, but Moss did not file his motion for new trial until
August 23. Moss conceded that he failed to file the motion within
10 days, but he argued that he was unavoidably prevented from doing
so. The Court found nothing in the record to show that Moss was
unavoidably prevented from filing a timely motion for new trial.
Moss' failure to file within the constraints of the mandatory language
in § 29-2103 precludes appellate review. “We will not
consider this untimely motion on appeal.”
Finally,
regarding assignment (5) Finally, Moss claimed that the district
court imposed excessive sentences. The sentences imposed by the
district court were all within the statutory limits At sentencing,
the court was clearly bothered by what it termed "the callous
nature of the act." The court stated, "Shooting . . .
Harlan three times in the back is cold enough, but then to throw
her in the trunk of the car while she's asking for medical help,
heading towards a very lingering death is a show of coldness and
callousness and thinking absolutely only of himself . . . "
The district court, having presided over the trial, was familiar
with the circumstances of the case, and it imposed sentences within
the statutory limitations. Considering Moss' background and the
totality of the circumstances, the Court concluded that the trial
court did not abuse its discretion in imposing the sentences. AFFIRMED.
The Nebraska
Court of Appeals here affirms convictions and sentences for two
counts of murder in the second degree and two counts of use of a
deadly weapon to commit a felony in the slaying of a mother and
her unborn child.
State
v. Moss (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Constitutionality
of Statute:] This court cannot determine the constitutionality
of a statute, yet when necessary to a decision in the case before
us, we do have jurisdiction to determine whether a constitutional
question has been properly raised. In re Interest of Jeffrey
K., 14 Neb. App. 818, 717 N.W.2d 499 (2006); State v. Johnson,
12 Neb. App. 247, 670 N.W.2d 802 (2003).
- [Motion
to Suppress:] An appellate court will uphold the trial court's
ruling on a motion to suppress unless the trial court's findings
of fact are clearly erroneous. In making this determination, the
appellate court does not reweigh the evidence or resolve conflicts
in the evidence, but, rather, recognizes the trial court as the
finder of fact and considers the trial court observed the witnesses
testifying in regard to such motions. State v. Ball, 271
Neb. 140, 710 N.W.2d 592 (2006).
- [Sufficiency
of the Evidence:] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Barfield, 272 Neb. 502, 723
N.W.2d 303 (2006).
- [Motion
for New Trial:] In a criminal case, a motion for new trial is
addressed to the discretion of the trial court, and unless an abuse
of discretion is shown, the trial court's determination will not
be disturbed. State v. Lykens, 271 Neb. 240, 710 N.W.2d 844
(2006).
- [Sentencing:]
A sentence imposed within statutory limits will not be disturbed
on appeal absent an abuse of discretion by the trial court. State
v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006). An abuse of
discretion occurs when a sentencing court's reasons or rulings are
clearly untenable and unfairly deprive the litigant of a substantial
right and a just result. Id.
Motion to
Suppress:
- In Davis
v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed.
2d 362 (1994), the U.S. Supreme Court held that invocation of the
Miranda right to counsel required a suspect to unambiguously request
counsel. This court recognized that holding in In re Interest
of Frederick C., 8 Neb. App. 343, 594 N.W.2d 294 (1999), and
following the majority of jurisdictions which had considered the
issue, we held that the Davis "clear articulation rule"
was applicable to invocations of the Miranda right to remain silent.
As to whether the police have a duty to clarify answers, we stated,
"If the accused's statement is ambiguous or unequivocal, the
police officer has no duty to clarify the suspect's intent, and
the officer may proceed with the interrogation." In re Interest
of Frederick C., 8 Neb. App. at 352, 594 N.W.2d at 302.
Jurisdiction:
- Jurisdiction
is the inherent power or authority to decide a case; venue is the
place of trial of an action--the site where the power to adjudicate
is to be exercised. State ex rel. Bauersachs v. Williams,
215 Neb. 757, 340 N.W.2d 431 (1983).
- [Burden:]
In Nebraska, in the absence of a defendant's waiver of venue, the
State has the burden to prove proper venue beyond a reasonable doubt.
State v. Gorman, 232 Neb. 738, 441 N.W.2d 896 (1989). The
venue provision found at Neb. Rev. Stat. § 29-1301.01 (Reissue
1995) provides that [an]
accused person may be tried in the county in which the offense is
committed, or in any county into or out of which the person upon
whom the offense was committed may, in the prosecution of the offense,
have been brought, or in which an act is done by the accused in
instigating, procuring, promoting, or aiding in the commission of
the offense.
Motion for
New Trial:
- [Statute:]
According to Neb. Rev. Stat. § 29-2103(3) (Cum. Supp. 2006),
"[a] motion for new trial based on the grounds set forth in
subdivision (1), (2), (3), (4), or (7) of section 29-2101 shall
be filed within ten days after the verdict was rendered unless such
filing is unavoidably prevented . . ." Section 29-2103, by
its terms, is mandatory; a motion for new trial not filed in conformity
with the statutory requirements as to time may not be considered
by an appellate court on review. See State v. Thompson, 244
Neb. 375, 507 N.W.2d 253 (1993).
- [Words
and Phrases:] The Nebraska Supreme Court has interpreted the
phrase "unavoidably prevented" in § 29-2103 as referring
to circumstances beyond the control of the party filing the motion
for new trial. See, State v. Thompson, 246 Neb. 752, 523
N.W.2d 246 (1994); State v. Hawkman, 198 Neb. 578, 254 N.W.2d
90 (1977). The law requires diligence, and mere neglect will not
entitle a party to relief. Id.
Sentencing:
- In considering
a sentence to be imposed, the sentencing court is not limited in
its discretion to any mathematically applied set of factors. State
v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006). The appropriateness
of a sentence is necessarily a subjective judgment and includes
the sentencing judge's observation of the defendant's demeanor and
attitude and all the facts and circumstances surrounding the defendant's
life. State v. Lassek, supra ••• Factors a
judge should consider in imposing a sentence include the defendant's
age, mentality, education, experience, and social and cultural background,
as well as his or her past criminal record or law-abiding conduct,
motivation for the offense, nature of the offense, and the amount
of violence involved in the commission of the crime. State v.
Aldaco, supra.
- [Other
Cases:] It is difficult to color-match cases when reviewing
the terms of sentences. State v. Haynie, 239 Neb. 478, 476
N.W.2d 905 (1991); State v. Rivera, 14 Neb. App. 590, 711
N.W.2d 573 (2006). It is not the function of an appellate court
to conduct a de novo review of the record to determine whether a
sentence is appropriate. State v. Rivera, supra.; State v. Aldaco,
supra.
Date Filed
and Case No.: January 16, 2007. No. A-05-1132.
Court Appealed
From: District Court for Douglas County: J. Patrick Mullen,
Judge.
Attorneys
for the Appeal: Christopher J. Lathrop for Bobby J. Moss, appellant.
Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.
Judges:
Sievers, Carlson, and Cassel, Judges.
Authored
By: Cassel, Judge.
Summary:
The State filed an amended information on 03/17/05, charging Bobby
J. Moss with two counts of murder in the second degree and two counts
of use of a deadly weapon to commit a felony, arising out of acts
occurring on approximately 12/04/03 against Michelle Harlan and
her unborn child. A bench trial commenced on 05/31/05 and after
hearing evidence on 06/03/05, the court entered a verdict adjudging
Moss guilty of murder in the second degree of Harlan, use of a weapon
to commit a felony as to the murder of Harlan, and manslaughter
of Harlan's unborn child. The court sentenced Moss to 50 to 70 years'
imprisonment for murder in the second degree, 5 to 10 years' imprisonment
for use of a weapon, and 10 to 20 years' imprisonment for manslaughter,
all sentences to run consecutively. Moss filed a motion for new
trial, alleging that the actions of the prosecuting attorney prevented
him from having a fair trial and that the verdict was not sustained
by sufficient evidence or was contrary to the law. Following a hearing,
the court overruled the motion. Moss appeal to the Nebraska Court
of Appeals.
Moss alleged
that the district court erred (1) in failing to find Neb. Rev. Stat.
§ 28-392 (Cum. Supp. 2006) unconstitutionally vague and overbroad,
(2) in overruling his motion to suppress, (3) in finding him guilty
beyond a reasonable doubt and finding appropriate jurisdiction,
(4) in overruling his motion for new trial, and (5) in imposing
excessive sentences.
Regarding
assignment (1): Moss argues that § 28-392 is unconstitutionally
vague and overbroad, both on its face and as applied to Moss. The
State responds that Moss did not challenge the statute at the district
court level and that the record did not reflect a motion to quash
or the notice required by court rule. The Court found that while
it could not decide on the constitutionality of the statute, Moss
properly presented the constitutional issue to the district court.
However, the record did not show that Moss complied with rule 9E
of the Rules of the Nebraska Supreme Court, which requires in part
that when filing a brief, a party alleging unconstitutionality of
a federal or state statute must file and serve a separate written
notice of the challenge to the statute with the Clerk of the Supreme
Court. Because Moss did not comply with this requirement, the constitutional
challenge to § 28-392 had not been properly preserved for appellate
review.
Regarding
assignment (2): Moss argued on appeal that his statement, which
was memorialized in a videotape and received into evidence during
trial, should have been suppressed for several reasons. 1) No waiver
of his right to remain silent or his right to counsel- the district
court found that the videotape of Moss' statement showed he waived
those rights and the Court found that the district court's factual
findings were not clearly erroneous. 2) He was coerced into making
a statement through physical intimidation - the district court stated
that the videotape showed an incident where Moss, while alone in
the interview room, stood on the table and overturned it, leading
to a heated exchange when officers returned to the room (which lasted
less than a minute.) The court stated that there was no threat,
coercion, or undue influence flowing from the incident. The court
found, under the totality of the circumstances, that Moss knowingly,
voluntarily, and intelligently waived his privilege against self-incrimination.
The Court said the district court's factual findings were not clearly
erroneous. 3) Coercion by promises made to him. The court stated
that the officers' denying Moss the opportunity to speak to his
wife until the interrogation process was finished was not coercion
for Moss to confess to the crime. The court further found no benefit
offered to Moss in exchange for his statement and that his statement
was voluntary. The Court again found that the court's factual findings
were not clearly erroneous.
Because the
district court's findings of fact on the motion to suppress were
not clearly erroneous, the Court upheld the overruling of Moss'
motion to suppress and the admission of the statement into evidence
during trial.
Regarding
assignment (3): Moss argues that the evidence was insufficient
to convict him of second degree murder of Harlan or of manslaughter
of the fetus. He also alleged that the evidence was insufficient
to show that Harlan was killed in Douglas County. We conclude that
this assignment of error is without merit. In convicting Moss of
second degree murder, the district court found that Moss shot Harlan
based on Moss' statement, which was corroborated by physical evidence.
The court did not find the self-defense claim to be credible, recognizing
that Harlan was shot three times in the back and that there was
no allegation that Harlan was armed. The court found no deadly force
threatened against Moss. The Court could not say that the district
court's findings were clearly erroneous.
Moss next argued
that he should not have been convicted of manslaughter, because
there was insufficient proof that he killed the fetus without malice
upon a sudden quarrel or that the fetus was alive at the time of
Harlan's death. The court observed that two photographs of Harlan
depicted she was pregnant and that Moss did not present an argument
that he did not know Harlan was pregnant. No evidence was presented
to contradict the expert testimony that the fetus was viable and
that the death of the fetus was caused by Harlan's death. The evidence
sufficiently established that Moss unintentionally killed the fetus
in the commission of Harlan's murder. The Court ruled that the district
court's findings with regard to the manslaughter conviction were
not clearly erroneous.
Finally, Moss
alleged that the court erred in finding appropriate jurisdiction.
The Court reased that even if Moss shot Harlan somewhere other than
Douglas County, the presence of blood and one of her shoes on the
rocks leading up to Carter Lake were sufficient to show that her
body was ultimately disposed of--and it was in fact found--on the
Douglas County side of the lake. “We conclude that venue in
Douglas County was proper.”
Regarding
assignment (4): Moss argues on appeal that the court erred in
not granting him a new trial based on prosecutorial misconduct and
on the admission of hearsay testimony. The Court first considered
the timeliness of Moss' motion. The court entered its verdict on
June 3, 2005, but Moss did not file his motion for new trial until
August 23. Moss conceded that he failed to file the motion within
10 days, but he argued that he was unavoidably prevented from doing
so. The Court found nothing in the record to show that Moss was
unavoidably prevented from filing a timely motion for new trial.
Moss' failure to file within the constraints of the mandatory language
in § 29-2103 precludes appellate review. “We will not
consider this untimely motion on appeal.”
Finally,
regarding assignment (5) Finally, Moss claimed that the district
court imposed excessive sentences. The sentences imposed by the
district court were all within the statutory limits At sentencing,
the court was clearly bothered by what it termed "the callous
nature of the act." The court stated, "Shooting . . .
Harlan three times in the back is cold enough, but then to throw
her in the trunk of the car while she's asking for medical help,
heading towards a very lingering death is a show of coldness and
callousness and thinking absolutely only of himself . . . "
The district court, having presided over the trial, was familiar
with the circumstances of the case, and it imposed sentences within
the statutory limitations. Considering Moss' background and the
totality of the circumstances, the Court concluded that the trial
court did not abuse its discretion in imposing the sentences. AFFIRMED.
This conviction
for animal cruelty and the 90 day sentence the defendant received
are affirmed by the Nebraska Court of Appeals, over an partial concurrence
and partial dissent by Judge Sievers who thought the 90 day jail
sentence for kicking the dog an abuse of discretion.
State
v. Claussen (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Sufficiency
of Evidence:] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Aldaco, 271 Neb. 160, 710 N.W.2d
101 (2006); State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. Aldaco, supra; State v. Sanders, 269 Neb. 895, 697
N.W.2d 657 (2005).
- [Sentencing:]
Sentences within statutory limits will be disturbed by an appellate
court only if the sentences complained of were an abuse of judicial
discretion. State v. Wagner, 271 Neb. 253, 710 N.W.2d 627
(2006); State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
An abuse of discretion takes place when the sentencing court's reasons
or rulings are clearly untenable and unfairly deprive a litigant
of a substantial right and a just result. State v. Thomas, supra;
State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
Criminal
Law:
- [Appeal
and Error:] On appellate review, a criminal conviction must
be sustained if the evidence, viewed and construed most favorably
to the State, is sufficient to support the conviction. State
v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004); State v.
Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002). When reviewing a
criminal conviction for sufficiency of the evidence to sustain the
conviction, the relevant question for an appellate court is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. (Conflicts
in Evidence:) In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the
finder of fact. See State v. Aldaco, 271 Neb. 160, 710 N.W.2d
101 (2006).
Sentencing:
- In considering
a sentence to be imposed, the sentencing court is not limited in
its discretion to any mathematically applied set of factors. State
v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005); State v.
Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005). The appropriateness
of a sentence is necessarily a subjective judgment and includes
the sentencing judge's observation of the defendant's demeanor and
attitude and all the facts and circumstances surrounding the defendant's
life. Id. "A sentencing authority 'is to be accorded very wide
discretion in determining an appropriate sentence' and should be
allowed to consider 'any and all information that reasonably might
bear on the proper sentence for the particular defendant, given
the crime committed.'" State v. Bruna, 14 Neb. App.
408, 417, 710 N.W.2d 329, 336 (2006), quoting Wasman v. United
States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984).
Date Filed
and Case No.: January 16, 2007. No. A-06-070.
Court Appealed
From: District Court for Buffalo County: John P. Icenogle, Judge.
Attorneys
for the Appeal: Greg C. Harris for Sean C. Claussen, appellant.
Jon Bruning, Julie L. Agena, and Erin E. Leuenberger for State of
Nebraska, appellee.
Judges:
Irwin, Sievers, and Carlson, Judges.
Authored
By: Carlson, Judge.
Summary:
On 02/14/05, a complaint was filed charging Sean C. Claussen with
strangulation, assault in the third degree, and animal cruelty.
The charges arose out of an allegation that Claussen kicked his
neighbor's dog, resulting in an altercation between Claussen and
his neighbor. Claussen pled not guilty to the charges and waived
a jury trial. A bench trial was held following whichl, the trial
court found Claussen not guilty of strangulation and third degree
assault and guilty of animal cruelty. The trial court subsequently
sentenced Claussen to 90 days in jail and ordered him to pay a $1,000
fine. Claussen appealed his conviction and sentence to the Nebraska
Court of Appeals.
In the appeal,
Claussen assigned that the trial court erred in (1) finding that
the evidence was sufficient to convict him of animal cruelty and
(2) imposing a sentence of incarceration and a fine based, in part,
on his objection to the State's request for restitution.
Regarding
assignment (1): Claussen first argued that there was insufficient
evidence to support a finding beyond a reasonable doubt that he
was guilty of animal cruelty. Claussen was charged with animal cruelty,
in violation of Neb. Rev. Stat. § 28-1009(2)(a) (Cum. Supp.
2006). That statute states, "[A] person who cruelly mistreats
an animal is guilty of a Class I misdemeanor." The phrase "cruelly
mistreat" means "to knowingly and intentionally kill,
maim, disfigure, torture, beat, mutilate, burn, scald, or otherwise
inflict harm upon any animal." (Emphasis supplied.) Neb.
Rev. Stat. § 28-1008(3) (Cum. Supp. 2006). Claussen argued
that the definition of "cruelly mistreat" in § 28-1008(3)
does not include acts where the harm is minimal, such as in the
instant case. Here the dog’s owner, William Rasmussen testified
that he saw Claussen kick the fence where his dog, a Maltese-American
Eskimo mix named Bear (who weighs only 10 pounds), was standing
against it and that the kick propelled Bear backward. Rasmussen
testified that Bear got back up against the fence and that Claussen
kicked the fence again. Rasmussen testified that this time Bear
"flew . . . a foot or two off the fence." The Court said
the court apparently found the testimony of Rasmussen and another
witness more credible than Claussen's testimony. The court stated
that the evidence that Bear flew backward off the fence when Claussen
kicked the fence and that Bear yelped or cried with injury was adequate
proof of harm as required by the statute. “We conclude that
there is sufficient evidence, when viewed and construed most favorably
to the State, to support a conviction for animal cruelty.”
Regarding
assignment (2) Claussen next assigns that the trial court erred
in imposing a sentence of incarceration and a fine based, in part,
on his objection to the State's request for restitution. During
sentencing, the court stated its concern that Claussen stood before
the court and acknowledged that he did something wrong, but made
no offer of restitution and objected to the State's evidence regarding
restitution. The court stated that such behavior by Claussen demonstrated
a lack of remorse for his actions. The Court said the court's comments
concerning Claussen's failure to offer restitution and his objection
to the State's request for restitution were part of the court's
observation of Claussen's demeanor and attitude. “It was appropriate
for the court to consider his demeanor and attitude” said the
Court. “We conclude that the sentence imposed by the trial
court was not an abuse of discretion.” AFFIRMED.
Sievers, Judge,
CONCURRING IN PART AND DISSENTING IN PART wrote, “While I concur
in the affirmance of the conviction, I must respectfully dissent
from the majority's resolution of the assignment of error that the
sentence of 90 days' incarceration is excessive.” Judge Sievers
said it was clear from the record and a review of the majority's
opinion that the only way this conviction stands up is if Claussen
was guilty of "otherwise harming" the dog, because the
specified and rather horrific injuries listed in the statute certainly
did not occur. If the dog was "otherwise harmed," and
the jury found it was, that harm was clearly minimal. “To sentence
a young man with no criminal record to 90 days' incarceration because
he may have inappropriately responded to his neighbor's barking
dog is an abuse of discretion. The sentence is far too severe for
the nature of the offense and the nature of the offender. It is
a waste of taxpayers' money to incarcerate this individual for 3
months for what is the functional equivalent of a first-time speeding
ticket. The fact that the sentence is within the statutory limits
does not make it an appropriate sentence.”
