Here, the Nebraska Department of Motor Vehicles appealed the judgment of a district court which reversed an order of the Department revoking a driver's license pursuant to the Administrative License Revocation for driving while intoxicated. The Nebraska Court of Appeals found competent evidence in the record to support the district court's determination that contrary to regulation, the officer who performed a breath test of the driver on which the revocation was based failed to observe him for 15 minutes before conducting the test.
Deboer v. Nebraska Dept. Of Motor Vehicles, 16 Neb. App. 760 (2008)
Court of Appeals Headnotes
Administrative Law:
1. Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. ••• When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable.
2. Final Orders: Courts: Appeal and Error. In reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals.
3. Appeal and Error. Pursuant to Neb. Rev. Stat. § 84-917(5)(a) (Cum. Supp. 2006) of the Administrative Procedure Act, the district court reviews an agency decision de novo on the record of the agency. ••• In a true de novo review, the district court’s decision is to be made independently of the agency’s prior disposition and the district court is not required to give deference to the findings of fact and the decision of the agency hearing officer.
4. Evidence: Words and Phrases. For purposes of reviewing an order of an administrative agency, competent evidence means evidence which tends to establish the fact in issue.
Date Filed and Case No.: June 3, 2008. No. A-07-874.
Court Appealed From: District Court for Hall County: Teresa K. Luther, Judge.
Attorneys for the Appeal: Jon Bruning, Andee G. Penn, and Edward G. Vierk for Nebraska Department of Motor Vehicles, appellant. No appearance for Ted Deboer, appellee.
Judges: Inbody, Chief Judge, and Moore and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On March 30, 2007, following a stop and DUI arrest by Elliott Gray, an officer with the Grand Island Police Department, Ted DeBoer submitted to a chemical breath test which disclosed a breath alcohol content (BAC) of .142. Gray completed a "Notice/Sworn Report/Temporary License” form (sworn report), which specifically stated that DeBoer’s BAC was .142 and the sworn report was forwarded to the Nebraska Department of Motor Vehicles (the Department).
DeBoer requested an administrative license revocation hearing and at the hearing, Gray’s sworn report was received into evidence. A “DATAMASTER Checklist Technique” form signed by Gray was also entered into evidence, which form by regulation must be completed by an officer when conducting a breath test. See 177 Neb. Admin. Code, ch. 1, § 007.02C (2004). The checklist includes several directions which the officer must follow, including a direction requiring the officer to “[o]bserve [the] subject for 15 minutes prior to testing.” That direction also requires the officer to record the time observation began and Gray entered “2326” as the time the observation period began. The test result printout from DeBoer’s breath test was also entered into evidence and the test record card indicated that DeBoer’s breath test occurred at “23:39.” Gray testified that he observed DeBoer for 15 minutes prior to administering the breath test to DeBoer, using his own watch to time the 15-minute period. Gray testified that according to his watch, the observation period began at 23:26 (11:26 p.m.) and DeBoer submitted to the breath test at 23:42 (11:42 p.m.). Gray also testified that he followed the checklist in accordance with title 177 and observed a 15-minute waiting period.
The hearing officer recommended that DeBoer’s license be revoked for the statutory period and the director of the Department adopted the hearing officer’s recommendation, revoking DeBoer’s driver’s license for 90 days. DeBoer appealed the decision to the district court.
The district court reversed the director’s decision, finding that DeBoer met his burden to disprove the Department’s prima facie case. The district court found that the checklist and the test record card show noncompliance with 177 Neb. Admin. Code, ch. 1, § 002.01E (2004), because the two documents indicated that DeBoer was not observed for the required 15 minutes before the breath test was administered.
The Department appealed.
Should the district court have allowed DeBoer to offer exhibits separately from the agency record? The Nebraska Court of Appeals began by observing that at the hearing before the district court, DeBoer was permitted to offer exhibits separately from the agency record. The Department stated that it had no objection to the separate exhibits. The Court noted that these separate exhibits, however, merely duplicated identical exhibits already contained in the agency record. The Court noted that the district court should not have received the separate exhibits for when reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997)
As such a court may not take judicial notice of an adjudicative fact which was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review—de novo on the record of the agency. Thus, the only evidence which should have been allowed by the district court consisted of the agency record, composed of the transcript of filings before the agency and the verbatim transcript of the agency hearing. The district court’s judgment noted the duplication of the pertinent documents by references to both the separate exhibit and the exhibit in the agency record.
Because the separate exhibits duplicated content in the agency record, any error in receiving such evidence was harmless. Moreover, the Department raised no objection to the duplicate exhibits.
Did the district court err in finding a lack of compliance with § 002.01E and finding that the Department’s prima facie case was rebutted as a result? Here, the sworn report prepared by Gray was entered into evidence and complied with the requirements set forth in Neb. Rev. Stat. § 60-498.01 (Reissue 2004) and the Department had made a prima facie case for license revocation, and the director is not required to prove that the recitations are true. The burden then shifted to DeBoer to show that one or more of the recitations in the sworn report was false. The district court found that DeBoer met his burden because the checklist and test record card, when read together, showed a lack of compliance with § 002.0IE, thereby invalidating the breath test and making the breath test result on the sworn report false. As that section requires that “testing records must show adherence to the approved method, and techniques” the district court found that the checklist and the test record card show a 13-minute observation period, rather than the required 15-minute period. Thus, the testing records show noncompliance with the “approved methods and techniques.”
In the instant case, the Court of Appeals said that the testing records present evidence which, if believed, is sufficient to rebut the presumption arising from the sworn report. The face of the testing records shows an elapsed time of only 13 minutes, contrary to the 15-minute period required by the regulation. Although Gray testified that he observed DeBoer for the required 15 minutes prior to administering the breath test and used his own watch to do so, the district court in its de novo review was permitted to resolve conflicts in the evidence and was not required to accept Gray’s testimony.
Therefore, the Court concluded that the district court’s factual finding that the testing records fail to adhere to the approved methods and techniques (that 15-minute observation period) is supported by competent evidence. Accordingly, they could not conclude that the district court erred in determining that DeBoer met his burden to disprove the Department’s prima facie case.
Conclusion: The Nebraska Court of Appeals concluded that there is competent evidence to support the district court’s findings that the testing records did not comply with the approved methods and techniques as required by § 002.01E and, therefore, that DeBoer disproved the Department’s prima facie case. AFFIRMED.
Administrative Procedure Act, Appeal and Error, Exhibits?
Here, the Nebraska Department of Motor Vehicles appealed the judgment of a district court which reversed an order of the Department revoking a driver's license pursuant to the Administrative License Revocation for driving while intoxicated. The Nebraska Court of Appeals found competent evidence in the record to support the district court's determination that contrary to regulation, the officer who performed a breath test of the driver on which the revocation was based failed to observe him for 15 minutes before conducting the test.
Deboer v. Nebraska Dept. Of Motor Vehicles, 16 Neb. App. 760 (2008)
Court of Appeals Headnotes
Administrative Law:
1. Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. ••• When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is not arbitrary, capricious, or unreasonable.
2. Final Orders: Courts: Appeal and Error. In reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals.
3. Appeal and Error. Pursuant to Neb. Rev. Stat. § 84-917(5)(a) (Cum. Supp. 2006) of the Administrative Procedure Act, the district court reviews an agency decision de novo on the record of the agency. ••• In a true de novo review, the district court’s decision is to be made independently of the agency’s prior disposition and the district court is not required to give deference to the findings of fact and the decision of the agency hearing officer.
4. Evidence: Words and Phrases. For purposes of reviewing an order of an administrative agency, competent evidence means evidence which tends to establish the fact in issue.
Date Filed and Case No.: June 3, 2008. No. A-07-874.
Court Appealed From: District Court for Hall County: Teresa K. Luther, Judge.
Attorneys for the Appeal: Jon Bruning, Andee G. Penn, and Edward G. Vierk for Nebraska Department of Motor Vehicles, appellant. No appearance for Ted Deboer, appellee.
Judges: Inbody, Chief Judge, and Moore and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: On March 30, 2007, following a stop and DUI arrest by Elliott Gray, an officer with the Grand Island Police Department, Ted DeBoer submitted to a chemical breath test which disclosed a breath alcohol content (BAC) of .142. Gray completed a "Notice/Sworn Report/Temporary License” form (sworn report), which specifically stated that DeBoer’s BAC was .142 and the sworn report was forwarded to the Nebraska Department of Motor Vehicles (the Department).
DeBoer requested an administrative license revocation hearing and at the hearing, Gray’s sworn report was received into evidence. A “DATAMASTER Checklist Technique” form signed by Gray was also entered into evidence, which form by regulation must be completed by an officer when conducting a breath test. See 177 Neb. Admin. Code, ch. 1, § 007.02C (2004). The checklist includes several directions which the officer must follow, including a direction requiring the officer to “[o]bserve [the] subject for 15 minutes prior to testing.” That direction also requires the officer to record the time observation began and Gray entered “2326” as the time the observation period began. The test result printout from DeBoer’s breath test was also entered into evidence and the test record card indicated that DeBoer’s breath test occurred at “23:39.” Gray testified that he observed DeBoer for 15 minutes prior to administering the breath test to DeBoer, using his own watch to time the 15-minute period. Gray testified that according to his watch, the observation period began at 23:26 (11:26 p.m.) and DeBoer submitted to the breath test at 23:42 (11:42 p.m.). Gray also testified that he followed the checklist in accordance with title 177 and observed a 15-minute waiting period.
The hearing officer recommended that DeBoer’s license be revoked for the statutory period and the director of the Department adopted the hearing officer’s recommendation, revoking DeBoer’s driver’s license for 90 days. DeBoer appealed the decision to the district court.
The district court reversed the director’s decision, finding that DeBoer met his burden to disprove the Department’s prima facie case. The district court found that the checklist and the test record card show noncompliance with 177 Neb. Admin. Code, ch. 1, § 002.01E (2004), because the two documents indicated that DeBoer was not observed for the required 15 minutes before the breath test was administered.
The Department appealed.
Should the district court have allowed DeBoer to offer exhibits separately from the agency record? The Nebraska Court of Appeals began by observing that at the hearing before the district court, DeBoer was permitted to offer exhibits separately from the agency record. The Department stated that it had no objection to the separate exhibits. The Court noted that these separate exhibits, however, merely duplicated identical exhibits already contained in the agency record. The Court noted that the district court should not have received the separate exhibits for when reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997)
As such a court may not take judicial notice of an adjudicative fact which was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review—de novo on the record of the agency. Thus, the only evidence which should have been allowed by the district court consisted of the agency record, composed of the transcript of filings before the agency and the verbatim transcript of the agency hearing. The district court’s judgment noted the duplication of the pertinent documents by references to both the separate exhibit and the exhibit in the agency record.
Because the separate exhibits duplicated content in the agency record, any error in receiving such evidence was harmless. Moreover, the Department raised no objection to the duplicate exhibits.
Did the district court err in finding a lack of compliance with § 002.01E and finding that the Department’s prima facie case was rebutted as a result? Here, the sworn report prepared by Gray was entered into evidence and complied with the requirements set forth in Neb. Rev. Stat. § 60-498.01 (Reissue 2004) and the Department had made a prima facie case for license revocation, and the director is not required to prove that the recitations are true. The burden then shifted to DeBoer to show that one or more of the recitations in the sworn report was false. The district court found that DeBoer met his burden because the checklist and test record card, when read together, showed a lack of compliance with § 002.0IE, thereby invalidating the breath test and making the breath test result on the sworn report false. As that section requires that “testing records must show adherence to the approved method, and techniques” the district court found that the checklist and the test record card show a 13-minute observation period, rather than the required 15-minute period. Thus, the testing records show noncompliance with the “approved methods and techniques.”
In the instant case, the Court of Appeals said that the testing records present evidence which, if believed, is sufficient to rebut the presumption arising from the sworn report. The face of the testing records shows an elapsed time of only 13 minutes, contrary to the 15-minute period required by the regulation. Although Gray testified that he observed DeBoer for the required 15 minutes prior to administering the breath test and used his own watch to do so, the district court in its de novo review was permitted to resolve conflicts in the evidence and was not required to accept Gray’s testimony.
Therefore, the Court concluded that the district court’s factual finding that the testing records fail to adhere to the approved methods and techniques (that 15-minute observation period) is supported by competent evidence. Accordingly, they could not conclude that the district court erred in determining that DeBoer met his burden to disprove the Department’s prima facie case.
Conclusion: The Nebraska Court of Appeals concluded that there is competent evidence to support the district court’s findings that the testing records did not comply with the approved methods and techniques as required by § 002.01E and, therefore, that DeBoer disproved the Department’s prima facie case. AFFIRMED.
In this decision by the Nebraska Court of Appeals, the Court affirms a decision in a dissolution proceeding where the main asset of property to be divided was farm property. But for a slight modification in the child support ordered, the Court affirms the property division and determines that a Grace award should not be applied here.
Charron V. Charron, 16 Neb. App. 724 (2008)
Court of Appeals Headnotes
Divorce:
1. Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.
2. Property Division. The purpose of property division is to equitably distribute the marital assets between the parties, and the polestar for such distribution is fairness and reasonableness as determined by the facts of each case. ••• Pursuant to Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986), a “Grace award” is a device to fairly and reasonably divide marital estates where the prime asset in contention is one spouse’s gifted or inherited stock or property in a family agriculture organization.
Date Filed and Case No.: June 3, 2008. No. A-07-338.
Court Appealed From: District Court for Buffalo County: John P. Icenogle, Judge.
Attorneys for the Appeal: Kent A. Schroeder for Charles J. Charron, appellant and cross-appellee. John O. Sennett and Julianna S. Jenkins for Karen D. Charron, appellee and cross-appellant.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Severs, Judge.
Summary: Karen D. Charron and Charles J. Charron (Joe) were married on February 20, 1988 when she was 18 years old and he was 22. High school is the extent of the education of both parties. During the marriage, they had four children and the primary responsibility for raising the children was Karen’s.
Joe has always worked for his family’s corporation, Arrow C Ranch (hereinafter the corporation) for $1,000 per month, 7 days a week from dawn to dusk with about 20 days a year off. In addition to Joe’s salary, the corporation provided the Charron family’s housing, vehicle fuel, utilities, beef, and bulls to service their cow herd. In addition, Joe used the corporation’s equipment to farm their land, and grazed his cattle on the corporation’s pasture ground.
Karen was responsible for doing the household work, paying the household bills, and occasionally running errands or helping out during branding for the Arrow C Ranch, Inc. She had not been employed during the marriage, other than some part-time cleaning work, but was employed at the time of trial.
Karen and Joe’s personal assets included investments of approximately $182,700 plus 138.75 acres of mixed crop and pasture ground worth $130,000. Depending upon whose numbers were used, Karen and Joe had a cow herd of 98 or 81 head. Joe had been given 25 percent of the capital stock of the corporation by his parents, which stock the trial court valued at approximately $1 million.
The trial court found that the amount of the parties’ marital estate was approximately $503,000. Joe was awarded $251,767 of such estate, plus his corporate stock, and Karen was awarded $251,335 of the marital estate. Included in such award to Karen were approximately 138 acres. In addition to division of the marital property, Karen sought a “Grace award,” due to the substantial ownership interest that Joe had in the his family’s corporation and the fact that during the marriage, his work efforts were devoted to the betterment of the corporation. See Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986). The trial court, after reciting the substantial benefits the Charron family received from the corporation other than Joe’s somewhat nominal salary, as well as the fact that the parties had a substantial marital estate, found that the case was not appropriate for a Grace award to Karen. Karen was awarded alimony of $1,200 per month for 84 consecutive months. Joe appealed and Karen cross-appealed.
Did the trial court err in its award of 138 acres to Karen? Joe argues that he should have received the 138 acres owned by the parties. Although the trial court’s decree of dissolution does not specifically address why Karen rather than Joe was assigned such property, the Nebraska Court of Appeals said that the question for them after their de novo review is simply whether such award was an abuse of discretion. “The difficulty is that each party not only wants the land, but has a viable and well-articulated reason behind such desire” the Court wrote. “Obviously, the trial court found it reasonable and equitable to award the land to Karen.” From their review of the record, and recalling Joe’s involvement with the corporation, the Court wrote that it seems that it may well “be a stretch” to conclude that the ground in question is an integral part of Joe’s farming and ranching operation, as he asserted. Here, both parties have appropriate uses for the ground, and the Court could not say that the trial court abused its discretion or that its treatment of this parcel was unreasonable or unfair.
What about Child Support? Here, the trial court’s decree orders Joe to pay $1,171.50 per month in support until the parties’ oldest child is emancipated. The trial court’s figure fails to take into account Karen’s obligation under the worksheet adopted by the trial court (to be responsible for $128.25 per month in support.) Because of the failure to employ this offset the Court modified Joe’s child support obligation, retroactive to the time of the decree, to $1,043.25 per month for three children (he had been awarded one of the four children.)
Should the trial court have set aside to Joe the sum of $27,072 from the marital assets because he brought a certificate of deposit (CD) worth that amount into the marriage? Joe testified that he went to his bank and had them print records going back to the time of his marriage and that such records indicated he then owned a CD in the amount stated above. What happened to the CD was testified to by Joe.
The trial court found that the CD Joe had identified as his premarital property had not “adequately been traced into other now existing assets to establish a premarital credit.” The Court wrote that the tracing argued for in this case illustrates many of the problems present in tracing premarital assets and emphasizes the need for rather comprehensive and exacting proof of what has happened to a party’s premarital asset. “Without producing any concrete evidence of the existence of the CD other than his say-so, Joe testifies in effect that ‘it’s in those six investments somewhere.’”
“Suffice it to say that the proof in this case falls far short of that seen when a party to a dissolution action makes a successful tracing claim” wrote the Court. “The burden of proof is on Joe, but he did not show where the money went, that it stayed where it went, or that the investment(s) into which it went gained value rather than lost value. “ As such, the trial court did not abuse its discretion in rejecting Joe’s claim for the tracing of a CD which is alleged to have existed nearly 20 years prior to trial.
Did the district court err in failing to give Karen a Grace Award? Karen assigned error to the district court’s failure to give her a “Grace award” which has become a common term of art in dissolution cases, particularly involving farms and ranches, and which derives from the Supreme Court’s opinion in Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986). The Court described a Grace award “as a device to fairly and reasonably divide marital estates where the prime asset in contention is one spouse’s gifted or inherited stock or property in a family agriculture organization.” Reviewing the trial court’s decision de novo for an abuse of discretion the Court ruled that given that the parties were married rather young and that Joe is only in his early 40’s and Karen in her late 30’s, it could not be said that their marital estate (that the trial court valued at $503,000) is inadequate. The trial court evenly divided the marital estate and, in addition, awarded Karen 7 years’ worth of alimony at the rate of $1,200 per month.
The overriding concern is whether the division is fair and reasonable. Recognizing the substantial factual difference between this case and Grace and its progeny (particularly because the parties here have a substantial marital estate) the Court determined the division of the marital estate was equal and thus was clearly fair and reasonable. “Hence, we cannot say that the trial court abused its discretion in declining to make a Grace award to Karen.”
Conclusion: Finding no merit to the assignments of error raised by either Karen or Joe, the Court affirmed the decision of the district court in all respects, except for the minor correction to Joe’s child support obligation. AFFIRMED.
In this decision by the Nebraska Court of Appeals, the Court affirms a decision in a dissolution proceeding where the main asset of property to be divided was farm property. But for a slight modification in the child support ordered, the Court affirms the property division and determines that a Grace award should not be applied here.
Charron V. Charron, 16 Neb. App. 724 (2008)
Court of Appeals Headnotes
Divorce:
1. Appeal and Error. In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge.
2. Property Division. The purpose of property division is to equitably distribute the marital assets between the parties, and the polestar for such distribution is fairness and reasonableness as determined by the facts of each case. ••• Pursuant to Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986), a “Grace award” is a device to fairly and reasonably divide marital estates where the prime asset in contention is one spouse’s gifted or inherited stock or property in a family agriculture organization.
Date Filed and Case No.: June 3, 2008. No. A-07-338.
Court Appealed From: District Court for Buffalo County: John P. Icenogle, Judge.
Attorneys for the Appeal: Kent A. Schroeder for Charles J. Charron, appellant and cross-appellee. John O. Sennett and Julianna S. Jenkins for Karen D. Charron, appellee and cross-appellant.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Severs, Judge.
Summary: Karen D. Charron and Charles J. Charron (Joe) were married on February 20, 1988 when she was 18 years old and he was 22. High school is the extent of the education of both parties. During the marriage, they had four children and the primary responsibility for raising the children was Karen’s.
Joe has always worked for his family’s corporation, Arrow C Ranch (hereinafter the corporation) for $1,000 per month, 7 days a week from dawn to dusk with about 20 days a year off. In addition to Joe’s salary, the corporation provided the Charron family’s housing, vehicle fuel, utilities, beef, and bulls to service their cow herd. In addition, Joe used the corporation’s equipment to farm their land, and grazed his cattle on the corporation’s pasture ground.
Karen was responsible for doing the household work, paying the household bills, and occasionally running errands or helping out during branding for the Arrow C Ranch, Inc. She had not been employed during the marriage, other than some part-time cleaning work, but was employed at the time of trial.
Karen and Joe’s personal assets included investments of approximately $182,700 plus 138.75 acres of mixed crop and pasture ground worth $130,000. Depending upon whose numbers were used, Karen and Joe had a cow herd of 98 or 81 head. Joe had been given 25 percent of the capital stock of the corporation by his parents, which stock the trial court valued at approximately $1 million.
The trial court found that the amount of the parties’ marital estate was approximately $503,000. Joe was awarded $251,767 of such estate, plus his corporate stock, and Karen was awarded $251,335 of the marital estate. Included in such award to Karen were approximately 138 acres. In addition to division of the marital property, Karen sought a “Grace award,” due to the substantial ownership interest that Joe had in the his family’s corporation and the fact that during the marriage, his work efforts were devoted to the betterment of the corporation. See Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986). The trial court, after reciting the substantial benefits the Charron family received from the corporation other than Joe’s somewhat nominal salary, as well as the fact that the parties had a substantial marital estate, found that the case was not appropriate for a Grace award to Karen. Karen was awarded alimony of $1,200 per month for 84 consecutive months. Joe appealed and Karen cross-appealed.
Did the trial court err in its award of 138 acres to Karen? Joe argues that he should have received the 138 acres owned by the parties. Although the trial court’s decree of dissolution does not specifically address why Karen rather than Joe was assigned such property, the Nebraska Court of Appeals said that the question for them after their de novo review is simply whether such award was an abuse of discretion. “The difficulty is that each party not only wants the land, but has a viable and well-articulated reason behind such desire” the Court wrote. “Obviously, the trial court found it reasonable and equitable to award the land to Karen.” From their review of the record, and recalling Joe’s involvement with the corporation, the Court wrote that it seems that it may well “be a stretch” to conclude that the ground in question is an integral part of Joe’s farming and ranching operation, as he asserted. Here, both parties have appropriate uses for the ground, and the Court could not say that the trial court abused its discretion or that its treatment of this parcel was unreasonable or unfair.
What about Child Support? Here, the trial court’s decree orders Joe to pay $1,171.50 per month in support until the parties’ oldest child is emancipated. The trial court’s figure fails to take into account Karen’s obligation under the worksheet adopted by the trial court (to be responsible for $128.25 per month in support.) Because of the failure to employ this offset the Court modified Joe’s child support obligation, retroactive to the time of the decree, to $1,043.25 per month for three children (he had been awarded one of the four children.)
Should the trial court have set aside to Joe the sum of $27,072 from the marital assets because he brought a certificate of deposit (CD) worth that amount into the marriage? Joe testified that he went to his bank and had them print records going back to the time of his marriage and that such records indicated he then owned a CD in the amount stated above. What happened to the CD was testified to by Joe.
The trial court found that the CD Joe had identified as his premarital property had not “adequately been traced into other now existing assets to establish a premarital credit.” The Court wrote that the tracing argued for in this case illustrates many of the problems present in tracing premarital assets and emphasizes the need for rather comprehensive and exacting proof of what has happened to a party’s premarital asset. “Without producing any concrete evidence of the existence of the CD other than his say-so, Joe testifies in effect that ‘it’s in those six investments somewhere.’”
“Suffice it to say that the proof in this case falls far short of that seen when a party to a dissolution action makes a successful tracing claim” wrote the Court. “The burden of proof is on Joe, but he did not show where the money went, that it stayed where it went, or that the investment(s) into which it went gained value rather than lost value. “ As such, the trial court did not abuse its discretion in rejecting Joe’s claim for the tracing of a CD which is alleged to have existed nearly 20 years prior to trial.
Did the district court err in failing to give Karen a Grace Award? Karen assigned error to the district court’s failure to give her a “Grace award” which has become a common term of art in dissolution cases, particularly involving farms and ranches, and which derives from the Supreme Court’s opinion in Grace v. Grace, 221 Neb. 695, 380 N.W.2d 280 (1986). The Court described a Grace award “as a device to fairly and reasonably divide marital estates where the prime asset in contention is one spouse’s gifted or inherited stock or property in a family agriculture organization.” Reviewing the trial court’s decision de novo for an abuse of discretion the Court ruled that given that the parties were married rather young and that Joe is only in his early 40’s and Karen in her late 30’s, it could not be said that their marital estate (that the trial court valued at $503,000) is inadequate. The trial court evenly divided the marital estate and, in addition, awarded Karen 7 years’ worth of alimony at the rate of $1,200 per month.
The overriding concern is whether the division is fair and reasonable. Recognizing the substantial factual difference between this case and Grace and its progeny (particularly because the parties here have a substantial marital estate) the Court determined the division of the marital estate was equal and thus was clearly fair and reasonable. “Hence, we cannot say that the trial court abused its discretion in declining to make a Grace award to Karen.”
Conclusion: Finding no merit to the assignments of error raised by either Karen or Joe, the Court affirmed the decision of the district court in all respects, except for the minor correction to Joe’s child support obligation. AFFIRMED.
Jury Instructions, Sexual Assault, No Corroboration
In this appeal before the Nebraska Court of Appeals, regarding a jury conviction for sexual assault on minors, defendant raised issues relating to the court's rulings on the State's motion in limine and on the State's objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements defendant made to a police officer. The Court affirms the trial court’s decisions.
State v. Schmidt, 16 Neb. App. 741 (2008)
Court of Appeals Headnotes
Rules of Evidence.
1. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial court’s decision regarding them will not be reversed absent an abuse of discretion.
Judgments:
1. Words and Phrases. 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.
Constitutional Law:
1. Appeal and Error. An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation Clause and reviews the underlying factual determinations for clear error.
2. Trial:
a. Witnesses. The functional purpose of the Confrontation Clause is to ensure the integrity of the factfinding process through the provision of an opportunity for effective cross-examination.
b. Juries: Witnesses. An accused’s constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, or (2) a reasonable jury would have received a significantly different impression of the witness’ credibility had counsel been permitted to pursue his or her proposed line of cross-examination.
c. Testimony. The right of cross-examination is not unlimited.
i. Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.
d. Rules of Evidence: Testimony: Proof: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked.
Jury Instructions:
1. Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
2. Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
3. Convictions: Appeal and Error. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, it must be considered prejudicial to the rights of the defendant.
4. Appeal and Error. Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error.
Confessions:
1. If a benefit is offered in exchange for testimony, and the offer is definite, then a confession is involuntary and must be suppressed.
2. Police Officers and Sheriffs. Whether a defendant’s statements resulted from an officer’s promise is a question of fact. ••• Generally, a defendant’s statement is inadmissible only if the totality of the circumstances shows that the police offered the defendant a benefit in exchange for the statement.
a. Evidence. Mere deception will not render a statement involuntary or unreliable; the test for determining the admis-sibility of a statement obtained by police deception is whether that deception produced a false or untrustworthy confession or statement.
3. Appeal and Error. A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. ••• In making the determination of whether a statement is voluntary, a totality of the circumstances test is applied, and the determination reached by the trial court will not be disturbed on appeal unless clearly wrong.
Motions to Suppress:
1. Appeal and Error. 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. ••• An 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 that the trial court observed the witnesses testifying in regard to motions to suppress.
Trial:
1. Evidence: Juries. A motion in limine is but a procedural step to prevent prejudicial evidence from reaching the jury. It is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence. Rather, its office is to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to the jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself.
2. Pleadings: Proof: Appeal and Error. In order to preserve any error before an appellate court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context within which questions were asked.
Criminal Law:
1. Constitutional Law: Trial: Witnesses. The right of a person accused of a crime to confront the witnesses against him or her is a fundamental right guaranteed by the 6th amendment to the U.S. Constitution, as incorporated in the 14th amendment, as well as by article I, § 11, of the Nebraska Constitution.
Rules of Evidence:
1. Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Evidence:
1. Words and Phrases. Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Date Filed and Case No.: June 3, 2008. No. A-07-556.
Court Appealed From: District Court for Jefferson County: Paul W. Korslund, Judge.
Attorneys for the Appeal: James R. Mowbray and Kelly S. Breen for Roger K. Schmidt, Sr., appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Moore, Judge.
Summary: On May 16, 2006, Roger K. Schmidt, Sr. was charged with two counts of first degree sexual assault on a child (§ 28-319(l)(c), a Class II felony) and five counts of sexual assault of a child in violation (§ 28-320.01) a Class IIIA felony. The alleged victims were M.C., R.S., and K.S. Schmidt filed a motion to suppress statements he had made and the district court entered an order overruling Schmidt’s motion concerning statements stemming from interrogations that occurred on April 27 but sustaining his motion as to an interrogation that occurred on May 1. On March 9, 2007, the district court entered an order ruling on the parties’ pretrial motions in limine, in particular sustaining the State’s motion in limine.
A jury trial was held and the jury returned a verdict finding Schmidt guilty of one count of first degree sexual assault on a child and of four counts of sexual assault of a child and not guilty of the remaining two counts. The district court sentenced Schmidt to imprisonment for a period of 18 to 25 years on the first degree sexual assault on a child conviction and a period of not less than 5 years nor more than 5 years on each conviction for sexual assault of a child. The court ordered Schmidt’s sentences to run consecutively. On appeal, Roger raises issues relating to the court’s rulings on the State’s motion in limine and on the State’s objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements Schmidt made to a police officer.
Did the district court err in sustaining the State’s motion in limine? Schmidt argued the court’s ruling prevented him from presenting relevant evidence that M.C. and K.S. both had previously reported allegations of sexual abuse by other perpetrators and that by experience, both were aware of the propriety of reporting “bad touches” and the protections afforded by their parents, police, and counselors. Schmidt also argued that he was denied his constitutional rights to confrontation and compulsory process to answer and rebut evidence presented by the State to explain why M.C. and K.S. did not promptly report Schmidt’s alleged abuse and why K.S. repeatedly denied her father’s allegations against Schmidt.
The Court said that the at the hearing on the motions in limine, Schmidt made an offer of proof consisting of the pretrial depositions of M.C, M.C.’s mother, K.S., and K.S.’ parents. The trial court did not find that the previous matters constituted past sexual behavior within the scope of Neb. Rev. Stat. § 28-321 or that the evidence should be barred under the provisions of Neb. Rev. Stat. § 27-404. The trial court did find, however, that the evidence should be excluded under the provisions of § 27-403 because any probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Accordingly, the court granted the State’s motion in limine. At trial, following Schmidt’s offer of proof, the district court renewed its ruling on the State’s motion in limine and excluded the evidence.
The Court said that a review of the trial testimony of K.S. and her parents and M.C. and her mother clearly showed that Schmidt was not absolutely prohibited from engaging in otherwise appropriate cross-examination of the witnesses in question, and there was nothing to suggest that a reasonable jury would have received a significantly different impression of the witnesses’ credibility had Schmidt’s counsel been permitted to further pursue his proposed line of cross-examination. Accordingly, the Court found that Schmidt’s right of confrontation was not violated. “Nor do we find an abuse of discretion in the district court’s exclusion of the evidence on the basis of its lack of probative value and the danger of confusion of the issues” they ruled. Schmidt’s assignment of error concerning the court’s ruling on the State’s motion in limine was ruled to be without merit.
Did the district court err in sustaining the State’s objection to certain cross-examination questioning of a witness regarding an unfounded allegation? Schmidt argued that his cross-examination of M.C. was thwarted when the court sustained the State’s objection to his questions concerning M.C.’s allegation that she witnessed Schmidt assault another child (T.B.). Schmidt further argued his questioning was proper as it was relevant to bias, prejudice, and credibility. The State argued that Schmidt has waived this assignment of error because he did not make an offer of proof to establish what M.C.’s testimony would have been had she been allowed to answer the question.
The Court said that although Schmidt did not make an offer of proof during the course of M.C.’s testimony, he did make an offer of proof at a later point in the trial. The court noted the offer of proof and again sustained the State’s previous hearsay and relevancy objections to the testimony. The Court of Appeals wrote that the difficulty with Schmidt’s offer of proof in this instance was that it did nothing to establish whether the allegations regarding Schmidt’s actions toward T.B. were unfounded. The Court noted that Schmidt was not charged in this case with assaulting T.B. “Clearly,” they said “the question of whether Schmidt assaulted another girl on a particular occasion does little to make it more or less probable that Schmidt assaulted M.C. on any number of other given occasions.” The Court ruled that the district court properly excluded the evidence as hearsay, and found no abuse of discretion in the exclusion of the evidence on the ground of relevancy. Nor did they find a violation of Schmidt’s right of confrontation in this instance.
Did the district court err in submitting a jury instruction (No. 14)? Jury instruction No. 14 provided, “The testimony of a person who is the victim of a sexual assault, as charged in this case, does not require corroboration. It is for you to decide what weight to give the testimony of [M.C, R.S., and K.S.]” Schmidt argued that this instruction is confusing and misleading when read in conjunction with other jury instructions. The Court found that jury instruction No. 14 is a correct statement of Nebraska law. While Schmidt argued that the instruction suggested that the jury should weigh the girls’ testimonial credibility without any consideration of corroboration and that it further suggested that the girls were victims of sexual assault, the Court disagreed. “When read as a whole, the instructions fairly present the law and are not misleading.” The Court pointed out that the jury clearly did not take the instructions as direction that the girls were victims of the charged sexual assaults, because it found Schmidt not guilty on two of the seven counts. The Court found no prejudicial error in the giving of jury instruction No. 14.
Did the district court err in admitting Schmidt’s statements to a police officer? Schmidt argued that his statements were rendered involuntary by the officer’s assurances that Schmidt was not a child molester and that the investigation did not need to be in the newspaper. Before the district court and on appeal, Schmidt relied on State v. Erks, 214 Neb. 302, 333 N.W.2d 776 (1983), a case in which the Nebraska Supreme Court found no clear error in the trial court’s suppression of admissions made after a police officer promised the defendant to stifle publicity about his case. The officer had also told the defendant that the police would protect him and his family from embarrassment if possible. The district court indicated that it had listened to the recording of the interrogations in this case and noted that although Schmidt was concerned about publicity, the officer interrogating him never promised that there would be no publicity. The Court found nothing in the record to suggest that the officer conducting the interrogation offered Schmidt a definite benefit in exchange for his statements or any indication that any deception on the part of the officer produced false or untrustworthy statements from Schmidt. “The district court’s ruling on Schmidt’s motion to suppress is not clearly erroneous.”
Conclusion: The Court of Appeals found that the district court did not abuse its discretion in excluding the evidence referenced in the State’s motion in limine, and the ruling did not violate Schmidt’s right of confrontation. They found that the trial court properly sustained the State’s objection to certain cross-examination of M.C. Further, the Court found that the trial court did not err in giving jury instruction No. 14 and the court’s ruling on Schmidt’s motion to suppress was not clearly erroneous. AFFIRMED.
Cassel, Judge, CONCURRING wrote separately only to emphasize that, in the Judge’s opinion, a jury instruction such as instruction No. 14 should not be routinely given. “An examination of legal standards for giving or refusing instructions, in light of the history of Neb. Rev. Stat. § 29-2028 (Reissue 1995), reveals why, absent unusual circumstances, a judge should not accede to a request for such instruction.”
Judge Cassel said that the Court properly rejected Schmidt’s argument that the instruction was misleading. Particularly because of the second sentence of instruction No. 14 (“[i]t is for you to decide what weight to give the testimony . . .”), when that instruction is read together with the other instructions, it becomes apparent that the jury is to evaluate a victim’s testimony in the same manner as it does the testimony of other witnesses. Such testimony may or may not have corroboration, and the jury may consider the presence or absence of such corroboration in determining the weight to be given to the testimony.
The State’s concession at oral argument confirms that it would not have been prejudiced had the court refused the instruction. Because the current law treats the testimony of a victim the same as that of any other witness, the general instruction on credibility of witnesses adequately covers the topic. The general instruction regarding witness credibility was adequate to cover the situation in this case. “Giving the redundant instruction introduced an unnecessary risk of undue emphasis of a part of the evidence. There was no reason to give the instruction, and unless special circumstances in a particular case require such instruction, I respectfully suggest that a trial judge should not do so.”
In this appeal before the Nebraska Court of Appeals, regarding a jury conviction for sexual assault on minors, defendant raised issues relating to the court's rulings on the State's motion in limine and on the State's objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements defendant made to a police officer. The Court affirms the trial court’s decisions.
State v. Schmidt, 16 Neb. App. 741 (2008)
Court of Appeals Headnotes
Rules of Evidence.
1. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial court’s decision regarding them will not be reversed absent an abuse of discretion.
Judgments:
1. Words and Phrases. 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.
Constitutional Law:
1. Appeal and Error. An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation Clause and reviews the underlying factual determinations for clear error.
2. Trial:
a. Witnesses. The functional purpose of the Confrontation Clause is to ensure the integrity of the factfinding process through the provision of an opportunity for effective cross-examination.
b. Juries: Witnesses. An accused’s constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, or (2) a reasonable jury would have received a significantly different impression of the witness’ credibility had counsel been permitted to pursue his or her proposed line of cross-examination.
c. Testimony. The right of cross-examination is not unlimited.
i. Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.
d. Rules of Evidence: Testimony: Proof: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked.
Jury Instructions:
1. Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
2. Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
3. Convictions: Appeal and Error. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, it must be considered prejudicial to the rights of the defendant.
4. Appeal and Error. Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error.
Confessions:
1. If a benefit is offered in exchange for testimony, and the offer is definite, then a confession is involuntary and must be suppressed.
2. Police Officers and Sheriffs. Whether a defendant’s statements resulted from an officer’s promise is a question of fact. ••• Generally, a defendant’s statement is inadmissible only if the totality of the circumstances shows that the police offered the defendant a benefit in exchange for the statement.
a. Evidence. Mere deception will not render a statement involuntary or unreliable; the test for determining the admis-sibility of a statement obtained by police deception is whether that deception produced a false or untrustworthy confession or statement.
3. Appeal and Error. A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. ••• In making the determination of whether a statement is voluntary, a totality of the circumstances test is applied, and the determination reached by the trial court will not be disturbed on appeal unless clearly wrong.
Motions to Suppress:
1. Appeal and Error. 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. ••• An 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 that the trial court observed the witnesses testifying in regard to motions to suppress.
Trial:
1. Evidence: Juries. A motion in limine is but a procedural step to prevent prejudicial evidence from reaching the jury. It is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence. Rather, its office is to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to the jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself.
2. Pleadings: Proof: Appeal and Error. In order to preserve any error before an appellate court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context within which questions were asked.
Criminal Law:
1. Constitutional Law: Trial: Witnesses. The right of a person accused of a crime to confront the witnesses against him or her is a fundamental right guaranteed by the 6th amendment to the U.S. Constitution, as incorporated in the 14th amendment, as well as by article I, § 11, of the Nebraska Constitution.
Rules of Evidence:
1. Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Evidence:
1. Words and Phrases. Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Date Filed and Case No.: June 3, 2008. No. A-07-556.
Court Appealed From: District Court for Jefferson County: Paul W. Korslund, Judge.
Attorneys for the Appeal: James R. Mowbray and Kelly S. Breen for Roger K. Schmidt, Sr., appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Moore, Judge.
Summary: On May 16, 2006, Roger K. Schmidt, Sr. was charged with two counts of first degree sexual assault on a child (§ 28-319(l)(c), a Class II felony) and five counts of sexual assault of a child in violation (§ 28-320.01) a Class IIIA felony. The alleged victims were M.C., R.S., and K.S. Schmidt filed a motion to suppress statements he had made and the district court entered an order overruling Schmidt’s motion concerning statements stemming from interrogations that occurred on April 27 but sustaining his motion as to an interrogation that occurred on May 1. On March 9, 2007, the district court entered an order ruling on the parties’ pretrial motions in limine, in particular sustaining the State’s motion in limine.
A jury trial was held and the jury returned a verdict finding Schmidt guilty of one count of first degree sexual assault on a child and of four counts of sexual assault of a child and not guilty of the remaining two counts. The district court sentenced Schmidt to imprisonment for a period of 18 to 25 years on the first degree sexual assault on a child conviction and a period of not less than 5 years nor more than 5 years on each conviction for sexual assault of a child. The court ordered Schmidt’s sentences to run consecutively. On appeal, Roger raises issues relating to the court’s rulings on the State’s motion in limine and on the State’s objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements Schmidt made to a police officer.
Did the district court err in sustaining the State’s motion in limine? Schmidt argued the court’s ruling prevented him from presenting relevant evidence that M.C. and K.S. both had previously reported allegations of sexual abuse by other perpetrators and that by experience, both were aware of the propriety of reporting “bad touches” and the protections afforded by their parents, police, and counselors. Schmidt also argued that he was denied his constitutional rights to confrontation and compulsory process to answer and rebut evidence presented by the State to explain why M.C. and K.S. did not promptly report Schmidt’s alleged abuse and why K.S. repeatedly denied her father’s allegations against Schmidt.
The Court said that the at the hearing on the motions in limine, Schmidt made an offer of proof consisting of the pretrial depositions of M.C, M.C.’s mother, K.S., and K.S.’ parents. The trial court did not find that the previous matters constituted past sexual behavior within the scope of Neb. Rev. Stat. § 28-321 or that the evidence should be barred under the provisions of Neb. Rev. Stat. § 27-404. The trial court did find, however, that the evidence should be excluded under the provisions of § 27-403 because any probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Accordingly, the court granted the State’s motion in limine. At trial, following Schmidt’s offer of proof, the district court renewed its ruling on the State’s motion in limine and excluded the evidence.
The Court said that a review of the trial testimony of K.S. and her parents and M.C. and her mother clearly showed that Schmidt was not absolutely prohibited from engaging in otherwise appropriate cross-examination of the witnesses in question, and there was nothing to suggest that a reasonable jury would have received a significantly different impression of the witnesses’ credibility had Schmidt’s counsel been permitted to further pursue his proposed line of cross-examination. Accordingly, the Court found that Schmidt’s right of confrontation was not violated. “Nor do we find an abuse of discretion in the district court’s exclusion of the evidence on the basis of its lack of probative value and the danger of confusion of the issues” they ruled. Schmidt’s assignment of error concerning the court’s ruling on the State’s motion in limine was ruled to be without merit.
Did the district court err in sustaining the State’s objection to certain cross-examination questioning of a witness regarding an unfounded allegation? Schmidt argued that his cross-examination of M.C. was thwarted when the court sustained the State’s objection to his questions concerning M.C.’s allegation that she witnessed Schmidt assault another child (T.B.). Schmidt further argued his questioning was proper as it was relevant to bias, prejudice, and credibility. The State argued that Schmidt has waived this assignment of error because he did not make an offer of proof to establish what M.C.’s testimony would have been had she been allowed to answer the question.
The Court said that although Schmidt did not make an offer of proof during the course of M.C.’s testimony, he did make an offer of proof at a later point in the trial. The court noted the offer of proof and again sustained the State’s previous hearsay and relevancy objections to the testimony. The Court of Appeals wrote that the difficulty with Schmidt’s offer of proof in this instance was that it did nothing to establish whether the allegations regarding Schmidt’s actions toward T.B. were unfounded. The Court noted that Schmidt was not charged in this case with assaulting T.B. “Clearly,” they said “the question of whether Schmidt assaulted another girl on a particular occasion does little to make it more or less probable that Schmidt assaulted M.C. on any number of other given occasions.” The Court ruled that the district court properly excluded the evidence as hearsay, and found no abuse of discretion in the exclusion of the evidence on the ground of relevancy. Nor did they find a violation of Schmidt’s right of confrontation in this instance.
Did the district court err in submitting a jury instruction (No. 14)? Jury instruction No. 14 provided, “The testimony of a person who is the victim of a sexual assault, as charged in this case, does not require corroboration. It is for you to decide what weight to give the testimony of [M.C, R.S., and K.S.]” Schmidt argued that this instruction is confusing and misleading when read in conjunction with other jury instructions. The Court found that jury instruction No. 14 is a correct statement of Nebraska law. While Schmidt argued that the instruction suggested that the jury should weigh the girls’ testimonial credibility without any consideration of corroboration and that it further suggested that the girls were victims of sexual assault, the Court disagreed. “When read as a whole, the instructions fairly present the law and are not misleading.” The Court pointed out that the jury clearly did not take the instructions as direction that the girls were victims of the charged sexual assaults, because it found Schmidt not guilty on two of the seven counts. The Court found no prejudicial error in the giving of jury instruction No. 14.
Did the district court err in admitting Schmidt’s statements to a police officer? Schmidt argued that his statements were rendered involuntary by the officer’s assurances that Schmidt was not a child molester and that the investigation did not need to be in the newspaper. Before the district court and on appeal, Schmidt relied on State v. Erks, 214 Neb. 302, 333 N.W.2d 776 (1983), a case in which the Nebraska Supreme Court found no clear error in the trial court’s suppression of admissions made after a police officer promised the defendant to stifle publicity about his case. The officer had also told the defendant that the police would protect him and his family from embarrassment if possible. The district court indicated that it had listened to the recording of the interrogations in this case and noted that although Schmidt was concerned about publicity, the officer interrogating him never promised that there would be no publicity. The Court found nothing in the record to suggest that the officer conducting the interrogation offered Schmidt a definite benefit in exchange for his statements or any indication that any deception on the part of the officer produced false or untrustworthy statements from Schmidt. “The district court’s ruling on Schmidt’s motion to suppress is not clearly erroneous.”
Conclusion: The Court of Appeals found that the district court did not abuse its discretion in excluding the evidence referenced in the State’s motion in limine, and the ruling did not violate Schmidt’s right of confrontation. They found that the trial court properly sustained the State’s objection to certain cross-examination of M.C. Further, the Court found that the trial court did not err in giving jury instruction No. 14 and the court’s ruling on Schmidt’s motion to suppress was not clearly erroneous. AFFIRMED.
Cassel, Judge, CONCURRING wrote separately only to emphasize that, in the Judge’s opinion, a jury instruction such as instruction No. 14 should not be routinely given. “An examination of legal standards for giving or refusing instructions, in light of the history of Neb. Rev. Stat. § 29-2028 (Reissue 1995), reveals why, absent unusual circumstances, a judge should not accede to a request for such instruction.”
Judge Cassel said that the Court properly rejected Schmidt’s argument that the instruction was misleading. Particularly because of the second sentence of instruction No. 14 (“[i]t is for you to decide what weight to give the testimony . . .”), when that instruction is read together with the other instructions, it becomes apparent that the jury is to evaluate a victim’s testimony in the same manner as it does the testimony of other witnesses. Such testimony may or may not have corroboration, and the jury may consider the presence or absence of such corroboration in determining the weight to be given to the testimony.
The State’s concession at oral argument confirms that it would not have been prejudiced had the court refused the instruction. Because the current law treats the testimony of a victim the same as that of any other witness, the general instruction on credibility of witnesses adequately covers the topic. The general instruction regarding witness credibility was adequate to cover the situation in this case. “Giving the redundant instruction introduced an unnecessary risk of undue emphasis of a part of the evidence. There was no reason to give the instruction, and unless special circumstances in a particular case require such instruction, I respectfully suggest that a trial judge should not do so.”
In this appeal before the Nebraska Court of Appeals, regarding a jury conviction for sexual assault on minors, defendant raised issues relating to the court's rulings on the State's motion in limine and on the State's objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements defendant made to a police officer. The Court affirms the trial court’s decisions.
State v. Schmidt, 16 Neb. App. 741 (2008)
Court of Appeals Headnotes
Rules of Evidence.
1. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), and a trial court’s decision regarding them will not be reversed absent an abuse of discretion.
Judgments:
1. Words and Phrases. 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.
Constitutional Law:
1. Appeal and Error. An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation Clause and reviews the underlying factual determinations for clear error.
2. Trial:
a. Witnesses. The functional purpose of the Confrontation Clause is to ensure the integrity of the factfinding process through the provision of an opportunity for effective cross-examination.
b. Juries: Witnesses. An accused’s constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, or (2) a reasonable jury would have received a significantly different impression of the witness’ credibility had counsel been permitted to pursue his or her proposed line of cross-examination.
c. Testimony. The right of cross-examination is not unlimited.
i. Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.
d. Rules of Evidence: Testimony: Proof: Appeal and Error. Error may not be predicated upon a ruling of a trial court excluding testimony of a witness unless the substance of the evidence to be offered by the testimony was made known to the trial judge by offer or was apparent from the context within which the questions were asked.
Jury Instructions:
1. Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
2. Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
3. Convictions: Appeal and Error. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, it must be considered prejudicial to the rights of the defendant.
4. Appeal and Error. Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error.
Confessions:
1. If a benefit is offered in exchange for testimony, and the offer is definite, then a confession is involuntary and must be suppressed.
2. Police Officers and Sheriffs. Whether a defendant’s statements resulted from an officer’s promise is a question of fact. ••• Generally, a defendant’s statement is inadmissible only if the totality of the circumstances shows that the police offered the defendant a benefit in exchange for the statement.
a. Evidence. Mere deception will not render a statement involuntary or unreliable; the test for determining the admis-sibility of a statement obtained by police deception is whether that deception produced a false or untrustworthy confession or statement.
3. Appeal and Error. A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. ••• In making the determination of whether a statement is voluntary, a totality of the circumstances test is applied, and the determination reached by the trial court will not be disturbed on appeal unless clearly wrong.
Motions to Suppress:
1. Appeal and Error. 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. ••• An 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 that the trial court observed the witnesses testifying in regard to motions to suppress.
Trial:
1. Evidence: Juries. A motion in limine is but a procedural step to prevent prejudicial evidence from reaching the jury. It is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of the evidence. Rather, its office is to prevent the proponent of potentially prejudicial matter from displaying it to the jury, making statements about it before the jury, or presenting the matter to the jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself.
2. Pleadings: Proof: Appeal and Error. In order to preserve any error before an appellate court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context within which questions were asked.
Criminal Law:
1. Constitutional Law: Trial: Witnesses. The right of a person accused of a crime to confront the witnesses against him or her is a fundamental right guaranteed by the 6th amendment to the U.S. Constitution, as incorporated in the 14th amendment, as well as by article I, § 11, of the Nebraska Constitution.
Rules of Evidence:
1. Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Evidence:
1. Words and Phrases. Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Date Filed and Case No.: June 3, 2008. No. A-07-556.
Court Appealed From: District Court for Jefferson County: Paul W. Korslund, Judge.
Attorneys for the Appeal: James R. Mowbray and Kelly S. Breen for Roger K. Schmidt, Sr., appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Moore, Judge.
Summary: On May 16, 2006, Roger K. Schmidt, Sr. was charged with two counts of first degree sexual assault on a child (§ 28-319(l)(c), a Class II felony) and five counts of sexual assault of a child in violation (§ 28-320.01) a Class IIIA felony. The alleged victims were M.C., R.S., and K.S. Schmidt filed a motion to suppress statements he had made and the district court entered an order overruling Schmidt’s motion concerning statements stemming from interrogations that occurred on April 27 but sustaining his motion as to an interrogation that occurred on May 1. On March 9, 2007, the district court entered an order ruling on the parties’ pretrial motions in limine, in particular sustaining the State’s motion in limine.
A jury trial was held and the jury returned a verdict finding Schmidt guilty of one count of first degree sexual assault on a child and of four counts of sexual assault of a child and not guilty of the remaining two counts. The district court sentenced Schmidt to imprisonment for a period of 18 to 25 years on the first degree sexual assault on a child conviction and a period of not less than 5 years nor more than 5 years on each conviction for sexual assault of a child. The court ordered Schmidt’s sentences to run consecutively. On appeal, Roger raises issues relating to the court’s rulings on the State’s motion in limine and on the State’s objection to certain cross-examination questioning, a particular jury instruction, and the admission of certain statements Schmidt made to a police officer.
Did the district court err in sustaining the State’s motion in limine? Schmidt argued the court’s ruling prevented him from presenting relevant evidence that M.C. and K.S. both had previously reported allegations of sexual abuse by other perpetrators and that by experience, both were aware of the propriety of reporting “bad touches” and the protections afforded by their parents, police, and counselors. Schmidt also argued that he was denied his constitutional rights to confrontation and compulsory process to answer and rebut evidence presented by the State to explain why M.C. and K.S. did not promptly report Schmidt’s alleged abuse and why K.S. repeatedly denied her father’s allegations against Schmidt.
The Court said that the at the hearing on the motions in limine, Schmidt made an offer of proof consisting of the pretrial depositions of M.C, M.C.’s mother, K.S., and K.S.’ parents. The trial court did not find that the previous matters constituted past sexual behavior within the scope of Neb. Rev. Stat. § 28-321 or that the evidence should be barred under the provisions of Neb. Rev. Stat. § 27-404. The trial court did find, however, that the evidence should be excluded under the provisions of § 27-403 because any probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Accordingly, the court granted the State’s motion in limine. At trial, following Schmidt’s offer of proof, the district court renewed its ruling on the State’s motion in limine and excluded the evidence.
The Court said that a review of the trial testimony of K.S. and her parents and M.C. and her mother clearly showed that Schmidt was not absolutely prohibited from engaging in otherwise appropriate cross-examination of the witnesses in question, and there was nothing to suggest that a reasonable jury would have received a significantly different impression of the witnesses’ credibility had Schmidt’s counsel been permitted to further pursue his proposed line of cross-examination. Accordingly, the Court found that Schmidt’s right of confrontation was not violated. “Nor do we find an abuse of discretion in the district court’s exclusion of the evidence on the basis of its lack of probative value and the danger of confusion of the issues” they ruled. Schmidt’s assignment of error concerning the court’s ruling on the State’s motion in limine was ruled to be without merit.
Did the district court err in sustaining the State’s objection to certain cross-examination questioning of a witness regarding an unfounded allegation? Schmidt argued that his cross-examination of M.C. was thwarted when the court sustained the State’s objection to his questions concerning M.C.’s allegation that she witnessed Schmidt assault another child (T.B.). Schmidt further argued his questioning was proper as it was relevant to bias, prejudice, and credibility. The State argued that Schmidt has waived this assignment of error because he did not make an offer of proof to establish what M.C.’s testimony would have been had she been allowed to answer the question.
The Court said that although Schmidt did not make an offer of proof during the course of M.C.’s testimony, he did make an offer of proof at a later point in the trial. The court noted the offer of proof and again sustained the State’s previous hearsay and relevancy objections to the testimony. The Court of Appeals wrote that the difficulty with Schmidt’s offer of proof in this instance was that it did nothing to establish whether the allegations regarding Schmidt’s actions toward T.B. were unfounded. The Court noted that Schmidt was not charged in this case with assaulting T.B. “Clearly,” they said “the question of whether Schmidt assaulted another girl on a particular occasion does little to make it more or less probable that Schmidt assaulted M.C. on any number of other given occasions.” The Court ruled that the district court properly excluded the evidence as hearsay, and found no abuse of discretion in the exclusion of the evidence on the ground of relevancy. Nor did they find a violation of Schmidt’s right of confrontation in this instance.
Did the district court err in submitting a jury instruction (No. 14)? Jury instruction No. 14 provided, “The testimony of a person who is the victim of a sexual assault, as charged in this case, does not require corroboration. It is for you to decide what weight to give the testimony of [M.C, R.S., and K.S.]” Schmidt argued that this instruction is confusing and misleading when read in conjunction with other jury instructions. The Court found that jury instruction No. 14 is a correct statement of Nebraska law. While Schmidt argued that the instruction suggested that the jury should weigh the girls’ testimonial credibility without any consideration of corroboration and that it further suggested that the girls were victims of sexual assault, the Court disagreed. “When read as a whole, the instructions fairly present the law and are not misleading.” The Court pointed out that the jury clearly did not take the instructions as direction that the girls were victims of the charged sexual assaults, because it found Schmidt not guilty on two of the seven counts. The Court found no prejudicial error in the giving of jury instruction No. 14.
Did the district court err in admitting Schmidt’s statements to a police officer? Schmidt argued that his statements were rendered involuntary by the officer’s assurances that Schmidt was not a child molester and that the investigation did not need to be in the newspaper. Before the district court and on appeal, Schmidt relied on State v. Erks, 214 Neb. 302, 333 N.W.2d 776 (1983), a case in which the Nebraska Supreme Court found no clear error in the trial court’s suppression of admissions made after a police officer promised the defendant to stifle publicity about his case. The officer had also told the defendant that the police would protect him and his family from embarrassment if possible. The district court indicated that it had listened to the recording of the interrogations in this case and noted that although Schmidt was concerned about publicity, the officer interrogating him never promised that there would be no publicity. The Court found nothing in the record to suggest that the officer conducting the interrogation offered Schmidt a definite benefit in exchange for his statements or any indication that any deception on the part of the officer produced false or untrustworthy statements from Schmidt. “The district court’s ruling on Schmidt’s motion to suppress is not clearly erroneous.”
Conclusion: The Court of Appeals found that the district court did not abuse its discretion in excluding the evidence referenced in the State’s motion in limine, and the ruling did not violate Schmidt’s right of confrontation. They found that the trial court properly sustained the State’s objection to certain cross-examination of M.C. Further, the Court found that the trial court did not err in giving jury instruction No. 14 and the court’s ruling on Schmidt’s motion to suppress was not clearly erroneous. AFFIRMED.
Cassel, Judge, CONCURRING wrote separately only to emphasize that, in the Judge’s opinion, a jury instruction such as instruction No. 14 should not be routinely given. “An examination of legal standards for giving or refusing instructions, in light of the history of Neb. Rev. Stat. § 29-2028 (Reissue 1995), reveals why, absent unusual circumstances, a judge should not accede to a request for such instruction.”
Judge Cassel said that the Court properly rejected Schmidt’s argument that the instruction was misleading. Particularly because of the second sentence of instruction No. 14 (“[i]t is for you to decide what weight to give the testimony . . .”), when that instruction is read together with the other instructions, it becomes apparent that the jury is to evaluate a victim’s testimony in the same manner as it does the testimony of other witnesses. Such testimony may or may not have corroboration, and the jury may consider the presence or absence of such corroboration in determining the weight to be given to the testimony.
The State’s concession at oral argument confirms that it would not have been prejudiced had the court refused the instruction. Because the current law treats the testimony of a victim the same as that of any other witness, the general instruction on credibility of witnesses adequately covers the topic. The general instruction regarding witness credibility was adequate to cover the situation in this case. “Giving the redundant instruction introduced an unnecessary risk of undue emphasis of a part of the evidence. There was no reason to give the instruction, and unless special circumstances in a particular case require such instruction, I respectfully suggest that a trial judge should not do so.”
Here, a district court granted summary judgment to the defendants who had been sued upon a guaranty of payment executed by the defendants and the district court found that the 3-month statute of limitations in which to collect a deficiency after foreclosure of a trust deed, found in Neb. Rev. Stat. § 76-1013 (Reissue 2003), barred the lawsuit. This matter was a case of first impression, for the Nebraska Court of Appeals, they addressed the scope and reach of the statute of limitations provision in § 76-1013 and found that the guarantee sued upon here was outside of that statute.
Boxum v. Munce, 16 Neb. App. 731 (2008)
Court of Appeals Headnotes
Judgments:
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation, it represents a question of law, and an appellate court must reach an independent conclusion irrespective of the determination of the lower court.
Secured Transactions:
1. Trusts: Deeds: The Nebraska Trust Deeds Act provides a specific statutory plan to obtain performance of an obligation, prescribes a distinct procedure to dispose of security for performance of an obligation, and, generally, authorizes a form of financing quite apart from other methods recognized under Nebraska law.
a. Limitations of Actions. At any time within 3 months after any sale of property under a trust deed, as provided in Neb. Rev. Stat. § 76-1013 (Reissue 2003), an action may be commenced to recover the balance due upon the obligation for which the trust deed was given as security. ••• The obligation secured by a deed of trust, not the title to the security, determines applicability or availability of the 3-month statute of limitations under Neb. Rev. Stat. § 76-1013 (Reissue 2003).
i. Foreclosure. The 3-month statute of limitations under Neb. Rev. Stat. § 76-1013 (Reissue 2003
NCLE Teleseminar: Ethics in Real Estate (Live Replay)