This direct
appeal of ineffective assistance if counsel is found to be meritless
by the Nebraska Court of Appeals.
State
v. Holladay (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Ineffective
Assistance of Counsel:
- To establish
a right to relief because of a claim of ineffective counsel at trial
or on direct appeal under Strickland v. Washington, supra,
the defendant has the burden first to show that counsel's performance
was deficient; that is, counsel's performance did not equal that
of a lawyer with ordinary training and skill in criminal law in
the area. See State v. Hubbard, 267 Neb. 316, 673 N.W.2d
567 (2004). Next, the defendant must show that counsel's deficient
performance prejudiced the defense in his or her case. State
v. Hubbard, supra; State v. Faust, 265 Neb. 845, 660 N.W.2d
844 (2003).
- [Prejudice:]
To prove prejudice, the defendant must show that there is a reasonable
probability that but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.
State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003).
- [Appeal
and Error:] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact. When reviewing a
claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. State
v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006); State v.
Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). See Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). With regard to the questions of counsel's performance or
prejudice to the defendant as part of the two-pronged test articulated
in Strickland v. Washington, supra, an appellate court reviews
such legal determinations independently of the lower court's decision.
State v. Smith, supra; State v. Benzel, 269 Neb. 1, 689 N.W.2d
852 (2004).
- [Direct
Appeal:] A claim of ineffective assistance of counsel may or
may not be considered when it is made on direct appeal. The determining
factor is whether the record is sufficient to adequately review
the question. If the matter has not been raised or ruled on at the
trial level and requires an evidentiary hearing, an appellate court
will not address the matter on direct appeal. State v. Moyer,
271 Neb. 776, 715 N.W.2d 565 (2006); State v. King, 269 Neb.
326, 693 N.W.2d 250 (2005). (Failure to Object:) When reviewing
whether trial counsel's failure to object to evidence constitutes
ineffective assistance of counsel, the appellate court must first
determine whether the testimony was inadmissible. If the testimony
is inadmissible, the court then turns to whether the defendant was
denied effective assistance of counsel. State v. Faust, supra.
Date Filed
and Case No.: February 6, 2007. No. A-06-066.
Court Appealed
From: District Court for Sheridan County: Paul D. Empson, Judge.
Attorneys
for the Appeal: Paul Wess for Larry T. Holladay, appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges:
Irwin, Moore, and Cassel, Judges.
Authored
By: Irwin, Judge.
Summary:
On 06/10/05, an information was filed in the district court for
Sheridan County, charging Larry T. Holladay with two counts of first
degree sexual assault and three counts of sexual assault of a child.
Holladay entered a plea of not guilty, and the case proceeded to
jury trial. At trial, the State elicited testimony that Holladay
had sexually abused three minor children living in his home between
October 2001 and February 2005: C.T. (d.o.b. 09/30/91) R.T. (d.o.b.
11/12/92) and T.L.W. (d.o.b.01/20/95). All three girls testified
as well as a criminal investigator.
In particular,
R.T. testified to several specific instances of sexual abuse. When
asked on direct examination if Holladay had ever said anything about
Native Americans, R.T. testified that he had told her "that
was what the Native Americans do." She testified that on one
occasion, while Holladay was driving, he reached across the passenger
seat and put his hand on her vagina, above her clothing.
After the State
finished its case in chief, defense counsel moved for a directed
verdict and the trial court denied defense counsel's motion, but
did find that the State failed to prove Holladay penetrated R.T.
As a result, the information was amended from one count of first
degree sexual assault to one count of attempted first degree sexual
assault. Defense counsel presented testimony from seven witnesses
and called Holladay to testify. The jury returned a verdict finding
Holladay guilty of all five charges. Post verdict, Holladay wrote
several letters to the trial court, requesting, in part, new trial
counsel. On December 20, Holladay filed a formal motion for mistrial.
The trial court vacated defense counsel's appointment and appointed
new counsel.
On 01/17/06,
the trial court sentenced Holladay to serve concurrent sentences
of 6 to 30 years' imprisonment on count I, 20 to 30 years' imprisonment
on count II, and 4 to 5 years' imprisonment on each of counts III,
IV, and V. After sentencing, the trial court allowed Holladay's
pro se motion for mistrial to be treated as a motion for new trial,
but denied the motion due to its untimely filing. Holladay appealed
to the Nebraska Court of Appeals.
On direct appeal,
Holladay raised the issue of ineffective assistance of counsel and
based his claim on six grounds: Trial counsel failed to (1) object
to questions referring to alleged comments made by Holladay regarding
Native Americans; (2) object to the State's use of Holladay's exhibits
on cross-examination; (3) present testimony from Holladay's character,
material, and expert witnesses; (4) interview Holladay's proposed
witnesses prior to trial; (5) introduce into evidence certain documents;
and (6) impeach certain testimony using medical expert testimony.
The Court found that the record was sufficient to determine that
Holladay was not denied effective assistance of counsel by trial
counsel's failure to object to questions regarding Holladay's alleged
comments about Native Americans and by trial counsel's failure to
object to the State's use of Holladay's exhibits during cross-examination.
We find the record insufficient to determine whether Holladay received
effective assistance of counsel on the remaining grounds.
Re: Holladay
assertion that he was denied effective assistance of counsel because
trial counsel's failure to object to the State's questions regarding
Holladay's alleged comments about Native Americans which he argued
prejudiced the jury. Before the Court addressed whether trial
counsel was deficient in failing to object the Court said it had
to first determine whether the testimony was inadmissible. After
reviewing the Nebraska rules of evidence, the Court found no authority
that indicated this testimony was inadmissible. “Additionally,
the State's questions are relevant because they concern alleged
statements, made by Holladay, which pertain to the alleged crimes.”
Because the testimony is admissible, the Court said it need not
address whether Holladay was denied effective assistance of counsel
on this ground.
Re: Holladay’s
assertion that trial counsel was ineffective in failing to object
to the State's "prosecutorial misconduct" when the State
used certain exhibits against him. First, regarding the State's
use of Holladay's exhibits, the Court noted that while evidence
admitted generally is in the case for any legitimate purpose, evidence
which is offered and admitted for a limited purpose cannot be used
for another and totally different purpose. Here, the trial court
did not expressly admit the exhibits for a limited purpose. As a
result, the Court said the State is entitled to use the exhibits
for any legal purpose for which they are admissible, and it found
no impermissible use by the State.
Second, the
Court found no error in the State's use of the exhibits in its cross-examination
and impeachment of Holladay. Here, Holladay failed to argue why
the State's use of certain exhibits constituted "prosecutorial
misconduct" and failed to cite any authority that would support
such argument. Because the State questioned Holladay about subject
matters that were within his knowledge and that tended to rebut
evidence given on direct examination, they found the State did not
engage in prosecutorial misconduct and found no merit to this claim.
Re: Holladay’s
remaining allegations. The Court concluded that the record on
appeal was insufficient to address Holladay's four remaining grounds
for ineffective assistance of trial counsel. “The record on
appeal is insufficient to review these allegations because it does
not indicate why certain witnesses were not called, nor does the
record disclose trial counsel's strategy in trial preparation, in
impeaching witnesses, and in introducing certain documents into
evidence. As such, we do not address these claims on direct appeal,
and we cannot say whether an evidentiary hearing on these issues
is necessary.” AFFIRMED.
Under this insurance
policy, the Nebraska Court of Appeals construes a center pivot irrigation
system to be a piece of “farm equipment” not a “structure.”
Lind
v. Clay Cty. Mut. Ins. Co. (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Summary Judgment:
- Summary judgment
is proper when the pleadings and evidence admitted at the hearing
disclose that there is no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of
law. Olson v. Le Mars Mut. Ins. Co., 269 Neb. 800, 696 N.W.2d
453 (2005); Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693
N.W.2d 522 (2005); Range v. Abbott Sports Complex, 269 Neb.
281, 691 N.W.2d 525 (2005).
- [Adverse
Parties:] When adverse parties have each moved for summary judgment
and the trial court has sustained one of the motions, the reviewing
court obtains jurisdiction over both motions and may determine the
controversy which is the subject of those motions or make an order
specifying the facts which appear without substantial controversy
and direct such further proceedings as the court deems just. Olson
v. Le Mars Mut. Ins. Co., supra; Big River Constr. Co. v. L &
H Properties, 268 Neb. 207, 681 N.W.2d 751 (2004).
- [Appeal
and Error:] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of
all reasonable inferences deducible from the evidence. Tighe
v. Combined Ins. Co. of America, 261 Neb. 993, 628 N.W.2d 670
(2001).
Insurance
Policies:
- [Appeal
and Error:] The meaning of an insurance policy is a question
of law, in connection with which an appellate court has an obligation
to reach its own conclusions independently of the determination
made by the lower court. Olson v. Le Mars Mut. Ins. Co., supra;
Auto-Owners Ins. Co. v. Home Pride Cos., 268 Neb. 528, 684 N.W.2d
571 (2004); Poulton v. State Farm Fire & Cas. Cos., 267
Neb. 569, 675 N.W.2d 665 (2004).
- [Construction:]
In construing insurance policy provisions, a court must determine
from the clear language of the policy whether the insurer in fact
insured against the risk involved. Austin v. State Farm Mut.
Auto. Ins. Co., 261 Neb. 697, 625 N.W.2d 213 (2001). •••
A contract must be construed as a whole, and if possible, effect
must be given to every part thereof. Guerrier v. Mid-Century
Ins. Co., 266 Neb. 150, 663 N.W.2d 131 (2003).. When the terms
of an insurance contract are clear, the court may not resort to
rules of construction, and the terms are to be accorded their plain
and ordinary meaning as an ordinary or reasonable person would understand
them. Boutilier v. Lincoln Benefit Life Ins. Co., 268 Neb.
233, 681 N.W.2d 746 (2004). ••• The language of an
insurance policy should be read to avoid ambiguities, if possible,
and the language should not be tortured to create them. Guerrier
v. Mid-Century Ins. Co., supra. A contract, such as an insurance
policy, is ambiguous when a word, phrase, or provision in the contract
has, or is susceptible of, at least two reasonable but conflicting
interpretations or meanings. Boutilier v. Lincoln Benefit Life
Ins. Co., supra. However, the fact that parties to a document
have or suggest opposing interpretations of the document does not
necessarily, or by itself, compel the conclusion that the document
is ambiguous. Id. While an ambiguous insurance policy will be construed
in favor of the insured, ambiguity will not be read into policy
language which is plain and unambiguous in order to construe it
against the preparer of the contract. Id.; Poulton v. State Farm
Fire & Cas. Cos., 267 Neb. 569, 675 N.W.2d 665 (2004). (Appeal
and Error:) An appellate court reviewing an insurance policy
must construe the policy as any other contract and give effect to
the parties' intentions at the time the contract was made. Guerrier
v. Mid-Century Ins. Co., 266 Neb. 150, 663 N.W.2d 131 (2003).
Date Filed
and Case No.: February 6, 2007. No. A-05-852.
Court Appealed
From: District Court for Phelps County: Terri Harder, Judge.
Attorneys
for the Appeal: Jeffrey M. Cox for Morris Lind, appellant. Robert
J. Parker, Lisa D. Stava, and Amy Skalka for Clay County Mutual
Insurance Company, appellee.
Judges:
Inbody, Chief Judge, and Irwin and Moore, Judges.
Authored
By: Irwin, Judge.
Summary:
Morris Lind appeals from an order of the district court for Phelps
County granting summary judgment in favor of Clay County Mutual
Insurance Company (CCMIC) and dismissing Lind's petition.
Lind is the
owner of a center pivot that was located on farm real estate owned
by Lind. In July 2003, the well casing of the irrigation well failed
and as a result, the well began pumping sand. The weight of the
sand caused a portion of the center pivot to collapse and the damage
to the center pivot totaled $10,718.47. In November 2003, Lind filed
a complaint against CCMIC. The complaint alleged that Lind had a
Policy that covered damage to the center pivot, that the center
pivot was damaged by events covered under the Policy, and that at
the time of the damage, the Policy was in full force and effect.
CCMIC countered that it was not liable under the Policy for damage
to the center pivot, and both parties filed cross-motions for summary
judgment. Following an evidentiary hearing, the trial court granted
CCMIC's motion for summary judgment, denied Lind's motion for summary
judgment, determined that "to conclude a center pivot irrigation
system is a structure under the [P]olicy would necessitate a tortured
reading of the [P]olicy," and ordered that Lind pay all costs
of the action. Lind appealed to the Nebraska Court of Appeals.
On appeal, Lind
assigned that the district court erred in determining that the center
pivot did not constitute a "structure" under the Policy.
Lind also asserted that the district court erred in not awarding
reasonable attorney fees to Lind, pursuant to Neb. Rev. Stat. §
44-359 (Reissue 2004).
Re: Whether
the center pivot is both the "structure" and the "farm
equipment and machinery" articulated in the Policy's language.
Because the Policy requires a reading that the terms "structure"
and "farm equipment and farm machinery" be understood
to mean separate and distinct items, the Court affirmed the trial
court's finding that the center pivot does not constitute a "structure"
under the terms of the Policy. Construing the Policy as a whole,
the Court concluded that the term "structure," as used
throughout the Policy, is not ambiguous. “A plain and ordinary
person would not understand the term ‘structure,’ as used
within the Policy, to mean a center pivot.” wrote the Court.
“The term ‘structure’ is not used in association
with the terms ‘farm machinery’ or ‘farm equipment,’
nor is the term ‘structure’ interchangeable with the terms
‘farm equipment’ or ‘farm machinery.’ Additionally,
we understand the plain language of the additional coverages section
in the property protection portion of the Policy to mean that the
terms ‘farm equipment and farm machinery’ are separate
and distinct from the term ‘structure.’” Under a
plain and commonsense reading, the Court found the language of the
Policy to be unambiguous, and concluded that the district court
was correct in granting summary judgment in favor of CCMIC.
Re: Whether
Lind was entitled to attorney fees under § 44-359. Because
the Court concluded that the trial court did not err in rendering
a judgment against Lind, it found no error in the trial court's
failure to grant Lind attorney fees. AFFIRMED.
In this de novo
review of a Juvenile Court’s adjudication of a juvenile under
Neb. Rev. Stat. § 43-247(1) for subjected another juvenile
to sexual contact without her consent or that he subjected her to
sexual contact and knew or should have known that she was physically
or mentally incapable of resisting or appraising the nature of his
conduct, in violation of Neb. Rev. Stat. § 28-320(3), the Nebraska
Court of Appeals affirms.
In
re Interest of Taylor P. (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Juvenile
Court:
- [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. In re Interest of Phoenix L.,
270 Neb. 870, 708 N.W.2d 786 (2006). The findings of fact made by
the juvenile court will be accorded great weight because it heard
and observed the witnesses and can better judge their credibility.
In re Interest of Jeffrey K., 14 Neb. App. 818, 717 N.W.2d
499 (2006).
- [Adjudication:
Standard of Proof:] Pursuant to Neb. Rev. Stat. § 43-279(2)
(Reissue 2004), when an adjudication is based upon § 43-247(1),
the allegations must be proved beyond a reasonable doubt. In
re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
Appeal and
Error:
- [Sufficiency
of Evidence:](Criminal Intent:) When the sufficiency of the
evidence as to criminal intent is in issue, a direct expression
of intention by the defendant is not required; the intent with which
an act is committed involves a mental process and may be inferred
from the words and acts of the defendant and from the circumstances
surrounding the incident. In re Interest of Jeffrey K., supra. The
requisite state of mind is a question of fact and may be proved
by circumstantial evidence. Id. The issue of intent of sexual
gratification in minors must be determined on a case-by-case basis.
There can be no bright-line test. The fact finder must consider
all of the evidence, including the offender's age and maturity,
before deciding whether intent can be inferred. In re Interest
of Kyle O., supra.
Criminal
Law:
- [Sexual
Contact:](Statutes:) Section 28-318(5) further provides: "Sexual
contact shall include only such conduct which can be reasonably
construed as being for the purpose of sexual arousal or gratification
of either party." ••• Neb. Rev. Stat. §
28-318(5) (Cum. Supp. 2004) defines "sexual contact" to
include "the intentional touching of the victim's sexual or
intimate parts or the intentional touching of the victim's clothing
covering the immediate area of the victim's sexual or intimate parts."
Section 28-318(2) defines "intimate parts" to be "the
genital area, groin, inner thighs, buttocks, or breasts." •••
Section 28-318(8) defines "without consent" to mean:
(a)(i) The victim
was compelled to submit due to the use of force or threat of force
or coercion, or (ii) the victim expressed a lack of consent through
words, or (iii) the victim expressed a lack of consent through conduct,
or (iv) the consent, if any was actually given, was the result of
the actor's deception as to the identity of the actor or the nature
or purpose of the act on the part of the actor;
(b) The victim need only resist, either verbally or physically,
so as to make the victim's refusal to consent genuine and real and
so as to reasonably make known to the actor the victim's refusal
to consent; and
(c) A victim need not resist verbally or physically where it would
be useless or futile to do so.
(Proof:)
In proving "sexual contact," the State need not prove
actual sexual arousal or gratification, but only circumstances and
conduct which could be construed as being for such purpose. State
v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988); In re Interest
of Kyle O., supra.
Date Filed
and Case No.: February 6, 2007. No. A-06-418.
Court Appealed
From: Separate Juvenile Court of Lancaster County: Thomas B.
Dawson, Judge.
Attorneys
for the Appeal: Dennis R. Keefe and Margene M. Timm for Taylor
P., appellant. Lori A. Maret and Katy Munch, Senior Certified Law
Student, for State of Nebraska, appellee.
Judges:
Irwin, Carlson, and Cassel, Judges.
Authored
By: Cassel, Judge.
Summary:
The separate juvenile court of Lancaster County adjudicated Taylor
P. pursuant to Neb. Rev. Stat. § 43-247(1) (Reissue 2004).
On 10/25/05,
the State filed a petition seeking to have 16-year-old Taylor adjudicated,
alleging that Taylor subjected L.C. to sexual contact without her
consent or that he subjected her to sexual contact and knew or should
have known that she was physically or mentally incapable of resisting
or appraising the nature of his conduct, in violation of Neb. Rev.
Stat. § 28-320(3) (Reissue 1995). The events at issue occurred
on or about September 12 through 16 at the high school attended
by Taylor and L.C. Taylor denied the allegations of the petition
and requested a formal hearing. At the adjudication hearing testimony
was given, by a fellow student, L.C., Tami Lang, a Lincoln police
officer and the school resource officer and A.E. a friend of Taylor
who was subpoenaed to testify. Taylor moved to dismiss the matter
following the State's rest, alleging that the State failed to prove
the "without consent" element. The juvenile court overruled
the motion. K.K., a friend of Taylor and W.B., testified for Taylor.
The juvenile court noted "substantial inconsistency" between
all the witnesses and stated that it gave weight to the officer's
testimony, because "[s]he's not friends with any of these people."
The juvenile court considered whether L.C. told Taylor "no"
and whether after that point, Taylor did something that would constitute
sexual touching. The court answered both inquiries in the affirmative.
The juvenile court found the allegations contained in the petition
to be true beyond a reasonable doubt and adjudicated Taylor. Taylor
appealed to the Nebraska Court of Appeals.
On appeal, Taylor
alleged that the juvenile court erred in finding sufficient evidence
to adjudicate him.
Re: Sexual
Contact by Taylor. The Court noted that the juvenile court heard
and observed the witnesses and found that "sexual touching"
occurred. At the adjudication trial, L.C. testified that Taylor
moved his hand up to her "genital area" and that he touched
her buttocks. A.E. testified that he observed Taylor touch L.C.
in the groin area. Lang testified that Taylor admitted that he put
his hand on L.C.'s knee and moved it toward (but not on) her genital
area and that he touched her buttocks. “We conclude that the
evidence established that Taylor intentionally touched L.C.'s intimate
parts.” The Court said that the evidence showed that 16-year-old
Taylor moved his hand up to the genital area of L.C., a high school
sophomore, and that he touched her buttocks on another occasion.
According to L.C.'s testimony, Taylor also made sexually suggestive
comments about and directed at L.C. “Although the occurrence
of such conduct during the daytime and in the presence of others
could be viewed as a factor negating sexual intent, based upon the
ages of the parties and Taylor's statements,” said the Court
“we conclude that Taylor's conduct could reasonably be construed
as being for the purpose of sexual arousal or gratification.”
Re: Without
Consent. The Court wrote that the State also had the burden
to prove that the sexual contact occurred without L.C.'s consent.
A.E. testified that L.C. told Taylor "No" or "Stop
it" on several days after the first day that Taylor moved his
hand to L.C.'s groin area. L.C. testified that on the third day
after she met Taylor, she pushed Taylor's arm away and told him
"Don't do that" when he placed his hand on her knee and
moved it up to her genital area. Accordingly, L.C. expressed a lack
of consent through words and through conduct. L.C. testified that
on the Friday after she met Taylor, he placed his hand under L.C.'s
seat so that L.C.'s buttocks touched Taylor's hand. “Such evidence
is sufficient to establish that Taylor subjected L.C. to sexual
contact without her consent.”
Conclusion:
Upon its de novo review, the Court concluded that the State adduced
sufficient evidence to support the adjudication. AFFIRMED.
Professional
Malpractice, Statute of Limitations, Discovery Extension
The Nebraska
Court of Appeals here gives a thorough examination of the statute
of limitations for a professional malpractice suit and the discovery
exception in affirming a trial courts decision that the statutory
time for filing suit had run.
Anonymous
v. Vasconcellos, 15 Neb. App. 363 (2007)
Court
of Appeals Headnotes
Summary Judgment.
- Summary judgment
is proper when the pleadings and the evidence admitted at the hearing
disclose that there is no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of
law.
- [Appeal
and Error.] In appellate review of a summary judgment, the court
views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of
all reasonable inferences deducible from the evidence. •••
A question of law raised in the course of consideration of a motion
for summary judgment, as with any question of law, must be decided
by the appellate court without reference to the decision of the
trial court.
Limitations
of Actions:
- A cause of
action accrues, and the statute of limitations begins to run, when
there has been discovery of facts constituting the basis of the
cause of action. ••• The discovery of the basis of
the cause of action is the preeminent concept in determining whether
the discovery exception applies to toll the statute of limitations.
- [Malpractice:]
For claims alleging professional malpractice, the period of limitations
begins to run when the treatment relating to the allegedly wrongful
act or omission is completed. (Time.)Nebraska has a 2-year
statute of limitations for actions for professional negligence except
that causes of action not discovered, and which could not have been
reasonably discovered until after the limitations period has run,
can be filed within 1 year of discovery, with an overall limitation
of 10 years after the date of rendering or failing to render such
professional service which provides the basis for the cause of action.
••• If the facts in a case are undisputed, the issue
as to when the professional negligence statute of limitations began
to run is a question of law.
- [Appeal
and Error.] The point at which a statute of limitations begins
to run must be determined from the facts of each case, and the decision
of the district court on the issue of the statute of limitations
normally will not be set aside by an appellate court unless clearly
wrong.
- [Words
and Phrases.] Discovery, as applied to statutes of limitations,
refers to the fact that one knows of the existence of an injury
or damage and not that he or she has a legal right to seek redress
in court.
- [Time.]
Under the 1-year discovery provision of Neb. Rev. Stat. § 25-222
(Reissue 1995), it is not necessary that the plaintiff have knowledge
of the exact nature or source of the problem, but only knowledge
that the problem existed.
Actions:
- A theory of
recovery is not itself a cause of action.
- [Words
and Phrases.] A cause of action consists of the set of facts
on which a recovery may be had.
Pleadings:
- [Evidence:]
(Waiver: Words and Phrases.) A judicial admission refers to
a formal act done in the course of judicial proceedings which is
a substitute for evidence, thereby waiving and dispensing with the
production of evidence by conceding for purposes of litigation that
the subject of the admission is true.
Date Filed
and Case No.: February 6, 2007. No. A-05-743.
Court Appealed
From: District Court for Seward County: Mary C. Gilbride, Judge.
Affirmed.
Attorneys
for the Appeal: Daniel H. Friedman and Herbert J. Friedman for
Anonymous, appellant. Robert F. Bartle for Paul Vasconcellos and
Blue Valley Mental Health Association, a Nebraska nonprofit corporation,
appellees.
Judges:
Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored
By: Sievers, Judge.
Summary:
Anonymous filed suit against Paul Vasconcellos, a licensed mental
health professional (LMHP) with training as a family and marriage
therapist, and his employer, Blue Valley Mental Health Association
(Blue Valley), a nonprofit corporation engaged in the practice of
psychotherapy and mental health counseling in Seward, Nebraska.
Anonymous (d.o.b.
08/11/61) alleged that during the 1970's, while she was attending
St. John's Elementary School (the School) in Seward, David Mannigel,
a teacher who later became the principal, sexually abused her between
the ages of 10 and 12. The School is associated with St. John Lutheran
Church (the Church) in Seward. Anonymous was a member of the Church
from her birth until she got married in 1984. Anonymous became Vasconcellos'
patient in 1990, when she was approximately 29 years old. Vasconcellos
is an LMHP and practices as a family and marriage therapist. Since
1978, Vasconcellos has been a member and visiting pastor of the
Church and considered Mannigel to be a personal friend. According
to Anonymous, Vasconcellos appeared shocked when she told him that
Mannigel had sexually abused her and Vasconcellos wanted to change
the subject. Anonymous said that when she said she wanted to confront
Mannigel, Vasconcellos told her both that a confrontation with Mannigel
could be dangerous to her and that she might not get the response
she wanted from him. In March 2001, Anonymous came forward to the
Church's administration with her allegations of sexual abuse. Soon
thereafter, in June 2001, Mannigel committed suicide.
Anonymous claimed
that Vasconcellos, while acting in the course and scope of his employment,
improperly treated Anonymous. Finding that Anonymous' claims were
barred by the statute of limitations pursuant to Neb. Rev. Stat.
§ 25-222 (Reissue 1995), the district court granted summary
judgment and dismissed the complaint. Anonymous appealed to the
Nebraska Court of Appeals alleging that the district court erred
by granting Appellees' motion for summary judgment.
The Court reminded
that Nebraska has a 2-year statute of limitations for actions for
professional negligence except that causes of action not discovered,
and which could not have been reasonably discovered until after
the limitations period has run, can be filed within 1 year of discovery,
with an overall limitation of 10 years after the date of rendering
or failing to render such professional service which provides the
basis for the cause of action. The record showed that Vasconcellos
last treated Anonymous on 04/20/00, and Anonymous contended that
she did not discover her claim within the following 2 years or by
04/10/02. “However,” wrote the Court “if she discovered
her claim by such date, this action is obviously barred by the statute
of limitations.”
The Court said
that the key question here is: When did Anonymous learn of the "basis"
of her cause of action? It was clear from the record the "basis"
of Anonymous' cause of action for improper treatment was that she
had been sexually abused as a child, which caused emotional and
psychological difficulties in her life; that she informed Vasconcellos
about the sexual abuse; and that Vasconcellos never treated her
for the sexual abuse. Viewing the evidence most favorably to Anonymous,
the Court assumed, for analytical purposes only, that Vasconcellos'
treatment of her was improper. However, why the treatment was improper
is not part of the discovery exception analysis; rather, the "why"
or reasons for the improper treatment are related to her theories
of recovery and to whether she actually has a legal right to redress.
“Therefore, whether Vasconcellos' treatment was improper because
of his lack of qualifications to treat sexual abuse victims and
his failure to report the abuse to law enforcement as well as the
fact that he was the abuser's friend, or any other reason, is not
relevant to the issue before us” said the Court. “We hold
that the ‘basis’ of her cause of action is that Anonymous
had been improperly treated by Vasconcellos for the consequences
of her past sexual abuse. Discovery of why she was improperly treated
is not what tolls the 2-year statute of limitations.”
Being fully
aware that the 2-year statute of limitations had obviously run,
Anonymous attempted to bring herself within the discovery exception
by Vasconcellos' friendship with Mannigel and his lack of expertise
with victims of sexual abuse. What Anonymous learned via a deposition
during discovery related solely to why she was improperly treated,
which is different than the basis of her cause of action--that Vasconcellos
negligently treated her for the sexual abuse she experienced as
a child. Taking the most favorable view of when Anonymous discovered
via the deposition the basis of her cause of action, the Court concluded
that at the latest, Anonymous' treatment with a subsequent psychologist
had concluded by July 2002. “Thus, even if we assume that Anonymous
was not aware of the basis of her cause of action against Vasconcellos
within 2 years of her last session with Vasconcellos on April 20,
2000, the date of discovery of her claim for negligent treatment
by Vasconcellos was no later than July 31, 2002.” The Court
said that at best, she had until 07/31/03 to file her lawsuit against
Vasconcellos. “Because Anonymous did not file her suit until
February 17, 2004, Anonymous' suit is barred by the statute of limitations.
The district court reached the same result upon a similar analysis.”
AFFIRMED.
The Nebraska
Court of Appeals here deals with a habeas corpus petition wherein
the petitioner sought credit for and “good time” credit
against his sentence, where he had been released on a bond and failed
to return until a subsequent arrest.
State
ex rel. Tyler v. Houston, 15 Neb. App. 374 (2007)
Court
of Appeals Headnotes
Sentences:
- [Time:]
(Prisoners.) Where a prisoner is discharged from a penal institution,
without any contributing fault on his or her part, and without violation
of conditions of parole, his or her sentence continues to run while
he or she is at liberty. ••• There is an exception
to the right to a continuous sentence in situations where the interruption
of the sentence is caused by escape, violation of parole, or some
other fault of the prisoner.
Date Filed
and Case No.: February 6, 2007. No. A-06-010.
Court Appealed
From: District Court for Lancaster County: Bernard J. McGinn,
Judge. Affirmed.
Attorneys
for the Appeal: Billy Tyler, appellant, pro se. Jon Bruning
and Linda Willard for Robert Houston and Mike Kenney, appellees.
Judges:
Irwin, Moore, and Cassel, Judges.
Authored
By: Irwin, Judge.
Summary:
Billy Tyler appeals from an order of the district court for Lancaster
County dismissing his petition for habeas corpus relief. The present
case is one of a number of actions brought by Tyler in a variety
of different courts on the issue of whether Tyler is entitled to
credit against his prison sentence for time he spent released on
bond pursuant to a grant of habeas relief in July 2003.
Tyler was originally
sentenced on 02/09/96, to three concurrent terms of 7 to 10 years'
imprisonment upon Tyler's convictions on three counts of unlawful
delivery of a controlled substance. Tyler was given credit for 80
days served. On 07/07/03 the district court granted a petition for
habeas corpus relief filed by Tyler and he was released on bond
while the State appealed. In February 2004, the Nebraska Supreme
Court reversed the grant of habeas corpus relief. See State ex
rel. Tyler v. Britten, 267 Neb. xxii (No. S-03-762, Feb. 19,
2004). The district court ordered Tyler to appear no later than
04/19/04. Tyler did not surrender himself as ordered by the district
court and was subsequently arrested on November 7.
On 09/08/05,
Tyler filed the petition for habeas corpus relief in this case alleging
he was entitled to credit against his sentence for the time from
his release on bond until his being returned to incarceration in
November 2004. Tyler alleged that with the credit against his sentence,
he was then entitled to absolute discharge. On 10/28/05 the district
court entered an order dismissing Tyler's petition finding that
Tyler was out of custody in violation of his bond for a total of
221 days. The district court specifically found that he was not
entitled to credit for the 221 days he was out of custody in violation
of his bond. The district court found that Tyler was not entitled
to restoration of good time previously forfeited, because he was
not in the custody of the Department while he was out of custody
on bond. The court therefore dismissed Tyler's petition. Tyler appealed
to the Nebraska Court of Appeals.
Tyler's sole
assignment of error was that the district court erred in denying
him habeas corpus relief. The Court construed the appeal to present
two issues: whether Tyler is entitled to credit as time served for
the period of time he was out of custody on bond and whether Tyler
is entitled to restoration of previously forfeited good time credit
for the period of time he was out of custody on bond.
Re: Whether
Tyler is entitled to credit as time served for the period of time
he was out of custody on bond the Court turned to a precedential
case in which Tyler himself was involved, Tyler v. Nebraska Dept.
of Corr. Servs., 13 Neb. App. 795, 701 N.W.2d 847 (2005), “an
opinion Tyler has seized upon and misconstrued in most of the filings
he has made in the present case.” Applying Tyler here before
us, the Court concluded that the district court did not err in dismissing
Tyler's petition. “The district court properly concluded that
Tyler is not entitled to credit as time served for the period of
time he was out of custody and in violation of the terms of his
bond, and this finding alone is sufficient to conclude that when
Tyler filed his petition, he was not entitled to habeas corpus relief
on the basis of any credit as time served” they ruled. “Nonetheless,
we conclude that the district court miscalculated the period of
time during which Tyler was in violation of his bond.” They
calculated that the period of time during which Tyler was out of
custody and in violation of his appearance bond was 202 days, rather
than the 221 days found by the district court.
Furthermore,
the Court agreed with the district court that Tyler is not entitled
to credit for time served during that period of time. “Because
we need not do so to resolve this appeal,” added the Court
“we expressly decline to address whether Tyler is entitled
to credit as time served for any period of time he was out of custody
on bond and not in violation of the terms of the bond or whether
Tyler was, in fact, not in violation of the terms of his bond during
any other periods of time.”
Re:Whether
Tyler is entitled to good time credit for the period of time he
was out of custody on bond. The record indicated that when Tyler
was released on bond in July 2003, he had accumulated no good time
credit and had actually accumulated disciplinary segregation time
equivalent to the remainder of his unserved sentence. “As such,”
the Court wrote “when Tyler was released on bond in July 2003,
he had accumulated more than 2 years of disciplinary segregation.”
Although Neb. Rev. Stat. § 83-1,107(3) allows for restoration
of good time, Tyler provided no authority which would suggest he
was entitled to such restoration of good time. In fact, the Department's
administrative regulation No. 117.02 provides that previously forfeited
good time "may be restored" if the inmate "has demonstrated
progressive positive behavior over an extended period of time."
Tyler had not demonstrated an entitlement to restoration under this
provision. Inasmuch as the Court had already concluded above that
Tyler is not entitled to any credit for this period of time as time
served, he is likewise not entitled to any good time credit for
the time. “We conclude that the district court correctly held
that Tyler is not entitled to restoration of good time credit and
was not entitled to habeas corpus relief on this basis.” AFFIRMED.
The Nebraska
Court of Appeals here deals with a habeas corpus petition wherein
the petitioner sought credit for and “good time” credit
against his sentence, where he had been released on a bond and failed
to return until a subsequent arrest.
State
ex rel. Tyler v. Houston, 15 Neb. App. 374 (2007)
Court
of Appeals Headnotes
Sentences:
- [Time:]
(Prisoners.) Where a prisoner is discharged from a penal institution,
without any contributing fault on his or her part, and without violation
of conditions of parole, his or her sentence continues to run while
he or she is at liberty. ••• There is an exception
to the right to a continuous sentence in situations where the interruption
of the sentence is caused by escape, violation of parole, or some
other fault of the prisoner.
Date Filed
and Case No.: February 6, 2007. No. A-06-010.
Court Appealed
From: District Court for Lancaster County: Bernard J. McGinn,
Judge. Affirmed.
Attorneys
for the Appeal: Billy Tyler, appellant, pro se. Jon Bruning
and Linda Willard for Robert Houston and Mike Kenney, appellees.
Judges:
Irwin, Moore, and Cassel, Judges.
Authored
By: Irwin, Judge.
Summary:
Billy Tyler appeals from an order of the district court for Lancaster
County dismissing his petition for habeas corpus relief. The present
case is one of a number of actions brought by Tyler in a variety
of different courts on the issue of whether Tyler is entitled to
credit against his prison sentence for time he spent released on
bond pursuant to a grant of habeas relief in July 2003.
Tyler was originally
sentenced on 02/09/96, to three concurrent terms of 7 to 10 years'
imprisonment upon Tyler's convictions on three counts of unlawful
delivery of a controlled substance. Tyler was given credit for 80
days served. On 07/07/03 the district court granted a petition for
habeas corpus relief filed by Tyler and he was released on bond
while the State appealed. In February 2004, the Nebraska Supreme
Court reversed the grant of habeas corpus relief. See State ex
rel. Tyler v. Britten, 267 Neb. xxii (No. S-03-762, Feb. 19,
2004). The district court ordered Tyler to appear no later than
04/19/04. Tyler did not surrender himself as ordered by the district
court and was subsequently arrested on November 7.
On 09/08/05,
Tyler filed the petition for habeas corpus relief in this case alleging
he was entitled to credit against his sentence for the time from
his release on bond until his being returned to incarceration in
November 2004. Tyler alleged that with the credit against his sentence,
he was then entitled to absolute discharge. On 10/28/05 the district
court entered an order dismissing Tyler's petition finding that
Tyler was out of custody in violation of his bond for a total of
221 days. The district court specifically found that he was not
entitled to credit for the 221 days he was out of custody in violation
of his bond. The district court found that Tyler was not entitled
to restoration of good time previously forfeited, because he was
not in the custody of the Department while he was out of custody
on bond. The court therefore dismissed Tyler's petition. Tyler appealed
to the Nebraska Court of Appeals.
Tyler's sole
assignment of error was that the district court erred in denying
him habeas corpus relief. The Court construed the appeal to present
two issues: whether Tyler is entitled to credit as time served for
the period of time he was out of custody on bond and whether Tyler
is entitled to restoration of previously forfeited good time credit
for the period of time he was out of custody on bond.
Re: Whether
Tyler is entitled to credit as time served for the period of time
he was out of custody on bond the Court turned to a precedential
case in which Tyler himself was involved, Tyler v. Nebraska Dept.
of Corr. Servs., 13 Neb. App. 795, 701 N.W.2d 847 (2005), “an
opinion Tyler has seized upon and misconstrued in most of the filings
he has made in the present case.” Applying Tyler here before
us, the Court concluded that the district court did not err in dismissing
Tyler's petition. “The district court properly concluded that
Tyler is not entitled to credit as time served for the period of
time he was out of custody and in violation of the terms of his
bond, and this finding alone is sufficient to conclude that when
Tyler filed his petition, he was not entitled to habeas corpus relief
on the basis of any credit as time served” they ruled. “Nonetheless,
we conclude that the district court miscalculated the period of
time during which Tyler was in violation of his bond.” They
calculated that the period of time during which Tyler was out of
custody and in violation of his appearance bond was 202 days, rather
than the 221 days found by the district court.
Furthermore,
the Court agreed with the district court that Tyler is not entitled
to credit for time served during that period of time. “Because
we need not do so to resolve this appeal,” added the Court
“we expressly decline to address whether Tyler is entitled
to credit as time served for any period of time he was out of custody
on bond and not in violation of the terms of the bond or whether
Tyler was, in fact, not in violation of the terms of his bond during
any other periods of time.”
Re:Whether
Tyler is entitled to good time credit for the period of time he
was out of custody on bond. The record indicated that when Tyler
was released on bond in July 2003, he had accumulated no good time
credit and had actually accumulated disciplinary segregation time
equivalent to the remainder of his unserved sentence. “As such,”
the Court wrote “when Tyler was released on bond in July 2003,
he had accumulated more than 2 years of disciplinary segregation.”
Although Neb. Rev. Stat. § 83-1,107(3) allows for restoration
of good time, Tyler provided no authority which would suggest he
was entitled to such restoration of good time. In fact, the Department's
administrative regulation No. 117.02 provides that previously forfeited
good time "may be restored" if the inmate "has demonstrated
progressive positive behavior over an extended period of time."
Tyler had not demonstrated an entitlement to restoration under this
provision. Inasmuch as the Court had already concluded above that
Tyler is not entitled to any credit for this period of time as time
served, he is likewise not entitled to any good time credit for
the time. “We conclude that the district court correctly held
that Tyler is not entitled to restoration of good time credit and
was not entitled to habeas corpus relief on this basis.” AFFIRMED.
In this de novo
review of a Juvenile Court’s adjudication of a juvenile under
Neb. Rev. Stat. § 43-247(1) for subjected another juvenile
to sexual contact without her consent or that he subjected her to
sexual contact and knew or should have known that she was physically
or mentally incapable of resisting or appraising the nature of his
conduct, in violation of Neb. Rev. Stat. § 28-320(3), the Nebraska
Court of Appeals affirms.
In
re Interest of Taylor P. (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Juvenile
Court:
- [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. In re Interest of Phoenix L.,
270 Neb. 870, 708 N.W.2d 786 (2006). The findings of fact made by
the juvenile court will be accorded great weight because it heard
and observed the witnesses and can better judge their credibility.
In re Interest of Jeffrey K., 14 Neb. App. 818, 717 N.W.2d
499 (2006).
- [Adjudication:
Standard of Proof:] Pursuant to Neb. Rev. Stat. § 43-279(2)
(Reissue 2004), when an adjudication is based upon § 43-247(1),
the allegations must be proved beyond a reasonable doubt. In
re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
Appeal and
Error:
- [Sufficiency
of Evidence:](Criminal Intent:) When the sufficiency of the
evidence as to criminal intent is in issue, a direct expression
of intention by the defendant is not required; the intent with which
an act is committed involves a mental process and may be inferred
from the words and acts of the defendant and from the circumstances
surrounding the incident. In re Interest of Jeffrey K., supra. The
requisite state of mind is a question of fact and may be proved
by circumstantial evidence. Id. The issue of intent of sexual
gratification in minors must be determined on a case-by-case basis.
There can be no bright-line test. The fact finder must consider
all of the evidence, including the offender's age and maturity,
before deciding whether intent can be inferred. In re Interest
of Kyle O., supra.
Criminal
Law:
- [Sexual
Contact:](Statutes:) Section 28-318(5) further provides: "Sexual
contact shall include only such conduct which can be reasonably
construed as being for the purpose of sexual arousal or gratification
of either party." ••• Neb. Rev. Stat. §
28-318(5) (Cum. Supp. 2004) defines "sexual contact" to
include "the intentional touching of the victim's sexual or
intimate parts or the intentional touching of the victim's clothing
covering the immediate area of the victim's sexual or intimate parts."
Section 28-318(2) defines "intimate parts" to be "the
genital area, groin, inner thighs, buttocks, or breasts." •••
Section 28-318(8) defines "without consent" to mean:
(a)(i) The victim
was compelled to submit due to the use of force or threat of force
or coercion, or (ii) the victim expressed a lack of consent through
words, or (iii) the victim expressed a lack of consent through conduct,
or (iv) the consent, if any was actually given, was the result of
the actor's deception as to the identity of the actor or the nature
or purpose of the act on the part of the actor;
(b) The victim need only resist, either verbally or physically,
so as to make the victim's refusal to consent genuine and real and
so as to reasonably make known to the actor the victim's refusal
to consent; and
(c) A victim need not resist verbally or physically where it would
be useless or futile to do so.
(Proof:)
In proving "sexual contact," the State need not prove
actual sexual arousal or gratification, but only circumstances and
conduct which could be construed as being for such purpose. State
v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988); In re Interest
of Kyle O., supra.
Date Filed
and Case No.: February 6, 2007. No. A-06-418.
Court Appealed
From: Separate Juvenile Court of Lancaster County: Thomas B.
Dawson, Judge.
Attorneys
for the Appeal: Dennis R. Keefe and Margene M. Timm for Taylor
P., appellant. Lori A. Maret and Katy Munch, Senior Certified Law
Student, for State of Nebraska, appellee.
Judges:
Irwin, Carlson, and Cassel, Judges.
Authored
By: Cassel, Judge.
Summary:
The separate juvenile court of Lancaster County adjudicated Taylor
P. pursuant to Neb. Rev. Stat. § 43-247(1) (Reissue 2004).
On 10/25/05,
the State filed a petition seeking to have 16-year-old Taylor adjudicated,
alleging that Taylor subjected L.C. to sexual contact without her
consent or that he subjected her to sexual contact and knew or should
have known that she was physically or mentally incapable of resisting
or appraising the nature of his conduct, in violation of Neb. Rev.
Stat. § 28-320(3) (Reissue 1995). The events at issue occurred
on or about September 12 through 16 at the high school attended
by Taylor and L.C. Taylor denied the allegations of the petition
and requested a formal hearing. At the adjudication hearing testimony
was given, by a fellow student, L.C., Tami Lang, a Lincoln police
officer and the school resource officer and A.E. a friend of Taylor
who was subpoenaed to testify. Taylor moved to dismiss the matter
following the State's rest, alleging that the State failed to prove
the "without consent" element. The juvenile court overruled
the motion. K.K., a friend of Taylor and W.B., testified for Taylor.
The juvenile court noted "substantial inconsistency" between
all the witnesses and stated that it gave weight to the officer's
testimony, because "[s]he's not friends with any of these people."
The juvenile court considered whether L.C. told Taylor "no"
and whether after that point, Taylor did something that would constitute
sexual touching. The court answered both inquiries in the affirmative.
The juvenile court found the allegations contained in the petition
to be true beyond a reasonable doubt and adjudicated Taylor. Taylor
appealed to the Nebraska Court of Appeals.
On appeal, Taylor
alleged that the juvenile court erred in finding sufficient evidence
to adjudicate him.
Re: Sexual
Contact by Taylor. The Court noted that the juvenile court heard
and observed the witnesses and found that "sexual touching"
occurred. At the adjudication trial, L.C. testified that Taylor
moved his hand up to her "genital area" and that he touched
her buttocks. A.E. testified that he observed Taylor touch L.C.
in the groin area. Lang testified that Taylor admitted that he put
his hand on L.C.'s knee and moved it toward (but not on) her genital
area and that he touched her buttocks. “We conclude that the
evidence established that Taylor intentionally touched L.C.'s intimate
parts.” The Court said that the evidence showed that 16-year-old
Taylor moved his hand up to the genital area of L.C., a high school
sophomore, and that he touched her buttocks on another occasion.
According to L.C.'s testimony, Taylor also made sexually suggestive
comments about and directed at L.C. “Although the occurrence
of such conduct during the daytime and in the presence of others
could be viewed as a factor negating sexual intent, based upon the
ages of the parties and Taylor's statements,” said the Court
“we conclude that Taylor's conduct could reasonably be construed
as being for the purpose of sexual arousal or gratification.”
Re: Without
Consent. The Court wrote that the State also had the burden
to prove that the sexual contact occurred without L.C.'s consent.
A.E. testified that L.C. told Taylor "No" or "Stop
it" on several days after the first day that Taylor moved his
hand to L.C.'s groin area. L.C. testified that on the third day
after she met Taylor, she pushed Taylor's arm away and told him
"Don't do that" when he placed his hand on her knee and
moved it up to her genital area. Accordingly, L.C. expressed a lack
of consent through words and through conduct. L.C. testified that
on the Friday after she met Taylor, he placed his hand under L.C.'s
seat so that L.C.'s buttocks touched Taylor's hand. “Such evidence
is sufficient to establish that Taylor subjected L.C. to sexual
contact without her consent.”
Conclusion:
Upon its de novo review, the Court concluded that the State adduced
sufficient evidence to support the adjudication. AFFIRMED.
