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Court of Appeals Call Case Summaries

Moore, Chief Judge, Inbody, and Riedmann, Judges

Lincoln - Tuesday, June 7, 2016 subject to call at 1:00 PM

A-15-317; A-15-323,  State v. Washington (Appellant)

Douglas County, District Court Judge Peter C. Batallion

Attorney for Appellant:  Brian S. Munnelly

Attorney for Appellee:  Douglas J. Peterson, Austin N. Ralph (Attorney General’s Office)

Criminal Action: first degree assault, second degree assault, three counts of use of a deadly weapon to commit a felony, two counts of possession of a firearm by a prohibited person, possession of a stolen firearm, and discharging a firearm in certain cities, villages, and counties

Action Taken by Trial Court:  These are consolidated cases where the district court granted the defendant a direct appeal as postconviction relief. Thus, the appeal currently before the court is the direct appeal of appellant’s convictions of first degree assault, second degree assault, three counts of use of a deadly weapon to commit a felony, possession of a deadly weapon by a prohibited person, and discharging a firearm.

Assignments of Error on Appeal:  The appellant’s assignments of error are that (1) the appellant was denied a fair trial by allowing the State to consolidate cases and allowing the State to amend the information and add additional counts on the eve of trial; (2) evidence was insufficient to support his conviction; (3) plain error in sentencing; and (4) ineffective assistance of counsel for failing to properly raise and preserve constitutional challenge to § 28-1212.04, failing to object to jury instructions, failing to object to exhibits 34 and 38 and the photos made from those videos, in failing to fully discuss and advise appellant concerning each count of the information and amended information, and entering into stipulations with the State without appellant’s knowledge and consent.

A-15-0985, State of Nebraska v. Russell Ostrum (Appellant)

District Court of Lancaster County, District Judge Robert R. Otte

Attorney for Appellant:  Brett McArthur

Attorney for Appellee:  George R. Love (Attorney General’s Office)

Criminal Action:  Assault and Battery

Action taken by the Trial Court:  The district court affirmed Ostrum’s conviction and sentence in county court for assault and battery in violation of Lincoln Municipal Code 9.12.010. In reaching this decision, the district court affirmed the county court’s admission of hearsay under the excited utterance exception.

Assignments of Error and Issues on Appeal:  Did the district court err in affirming the county court’s overruling of Ostrum’s hearsay objections? Did the district court err in affirming the county court’s overruling of Ostrum’s motion for directed verdict? Did the district court err in affirming the county court’s imposition of an excessive sentence?

A-15-538,  Sarah M. Mattson v. Jason E. Mattson (Appellant)

 Douglas County, District Court Judge Gary B. Randall

Attorney for Appellant:  Travis Thorne Bennington

Attorney for Appellee:  Michael B. Lustgarten; Britt H. Dudzinski (Lustgarten & Roberts, P.C., L.L.O.)

Civil Action:  Dissolution of Marriage

Action Taken by Trial Court:  The district court dissolved the parties’ marriage and awarded the appellee sole custody of the children. The court also awarded child support and ordered the appellant to pay an alimony arrearage. Further, the court made rulings regarding payment of medical and day care expenses, divided the parties’ marital property, and ordered the appellant to pay $10,000 in appellee’s attorney fees.

Assignments of Error on Appeal:  Assignments of error concern child support, alimony, award of attorney fees, failure to credit child support paid directly to appellee, property division, and medical and day care reimbursement.

A-15-0548, State of Nebraska. v. James H. Hall, Jr. (Appellant)

Lancaster County, District Court Judge Lori A. Maret

Attorney for Appellant:  Robert Wm Chapin, Jr.

Attorney for Appellee:  Douglas J. Peterson, George R. Love (Attorney General’s Office)

Criminal Action:  Hall was convicted of three counts of possession of a firearm by a prohibited person and one count of possession of a defaced firearm.

Action Taken by Trial Court:  The trial court accepted the jury’s verdict and found Hall guilty of the above offenses.

Assignments of Error on Appeal:  On appeal, Hall assigns that the district court erred in (1) failing to instruct the jury on entrapment by estoppel on Count III of the information; (2) making the sentence on Count IV consecutive to the sentences imposed on Counts I, II, and III; (3) finding sufficient evidence to sustain the convictions; and (4) failing to give Hall credit for time served on all four counts.

Irwin, Pirtle, and Bishop, Judges

Lincoln - Wednesday, June 8, 2016 subject to call at 9:00 AM

A-15-0828, State v. Grant No case summary is available for this case at this time.

A-15-0527, State of Nebraska v. Cletus S. Alford (Appellant)

Douglas County, District Court Judge J. Michael Coffey

Attorney for Appellant:  Gregory A. Pivovar

Attorney for Appellee:  Douglas J. Peterson, Melissa R. Vincent (Attorney General’s Office)

Criminal Action:  2nd Degree Assault; Use of a Deadly Weapon to Commit a Felony; Possession of  Deadly Weapon by a Prohibited Person

Action Taken by Trial Court:  After a jury trial, Appellant was convicted of each criminal charge. Post-Conviction relief was granted, allowing Appellant a new direct appeal.

Assignments of Error on Appeal:  Did the district court err in not dismissing the matter for fatal defects in the complaint? Did the district court correctly instruct the jury? Did the district court err in overruling Appellant’s motion for directed verdict? Did the district court err in finding there was sufficient evidence to support a guilty verdict? Did the court err in imposing an excessive sentence? Did Appellant receive ineffective assistance of counsel?

A-15-0935, State v. Kirchhoff No case summary is available for this case at this time.

A-15-1229, In re Interest of Sicily M., Rayln M., and Brandon R., Jr., children under 18 years of age. State of Nebraska v. Brandon R., Sr. (Appellant)

Douglas County, Separate Juvenile Court Judge Elizabeth G. Crnkovich

Attorney for Appellant:  Joe Bradley

Attorney for Appellee:  Donald W. Kleine, Jennifer C. Clark (County Attorney’s Office)

Civil Action:  Termination of Parental Rights

Action Taken by Trial Court:  The Separate Juvenile Court terminated Appellant’s parental rights to the minor children.

Assignments of Error on Appeal:  Did the juvenile court err in finding there was clear and convincing evidence that termination of Appellant’s rights was in the children’s best interests?