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Court of Appeals Call Case Summaries

Moore, Chief Judge, Pirtle, Judge, and McCormack, Justice, Retired

Doane University - Wednesday, October 12, 2016 subject to call at 9:30 AM

A-16-0150, Jason Boyer (Appellant) v. Lauren Boyer

Sarpy County, District Court Judge David Arterburn

Attorney for Appellant:  Aimee S. Melton, A. Bree Robbins (Reagan, Melton & Delaney LLP)

Attorney for Appellee:  Robin L. Binning (Binning & Plambeck)

Civil Action:  Modification of Divorce Decree/Removal of Minor Child

Action Taken by Trial Court:  The court granted Appellee’s petition to remove the child from Nebraska to Alaska, set parenting time for Appellant, and ordered that from the date of the decree until December 31, 2017, Appellee shall have final decision-making authority on all major decision making. On January 1, 2018, the parties shall resume joint legal custody over the child.

Assignments of Error on Appeal:  Did the district court err in finding a legitimate reason for removal? Did the district court err in finding it was in the child’s best interests to be removed from Nebraska? Did the district court err in finding the parties shall share joint legal custody commencing January 1, 2018? Did the district court err in receiving Exhibit 39, a letter to appellee regarding a job offer in Alaska, into evidence?

A-15-0840, State of Nebraska v. Mitchell Q. Wynne (Appellant)

District Court for Douglas County, District Judge Leigh A. Retelsdorf

Attorney for Appellant:  Thomas C. Riley (Douglas County Public Defender’s Office)

Attorney for Appellee:  Melissa R. Vincent (Attorney General’s Office)

Criminal Action:  First degree murder and use of a deadly weapon (firearm) to commit a felony

Action taken by the Trial Court:  Following a jury trial, Wynne was convicted of first degree murder and use of a deadly weapon (firearm) to commit a felony. The trial court sentenced Wynne to 40 to 100 years’ imprisonment for first degree murder and to a consecutive sentence of 10 to 20 years’ imprisonment for use of a deadly weapon (firearm) to commit a felony. The court gave Wynne 544 days of credit for time served.

Assignments of Error on Appeal:  Did the trial court err in admitting the content of certain text messages into evidence and in denying Wynne’s motion for mistrial based on prosecutorial misconduct during the State’s closing argument? Was the evidence was sufficient to sustain Wynne’s conviction for first degree murder on either of the State’s alternate theories:  felony murder in the commission or attempt to commit a robbery or intentional killing with premeditation and deliberation?

A-15-1161, State of Nebraska v. Brian A. McCrickert (Appellant)

Seward County, District Court Judge James Stecker

Attorney for Appellant:  William J. O’Brien

Attorney for Appellee:  Douglas J. Peterson, Nathan A. Liss (Attorney General’s Office)

Criminal Action:  Possession of Marijuana

Action Taken by Trial Court:  The court found the stop of Appellant’s vehicle was lawful and overruled Appellant’s motion to suppress evidence found inside of his vehicle. The court found Appellant guilty of possession of a controlled substance, weighing more than one pound.

Assignments of Error on Appeal:  Was there probable cause or reasonable suspicion to support the traffic stop of Appellant’s vehicle and did the court err in overruling Appellant’s motion to suppress evidence? 

A-15-0834, State of Nebraska v. Guy Eagle Elk (Appellant)

Trial Court:  Scottsbluff County, District Judge Travis P. O’Gorman

Attorney for Appellant:  William E. Madelung (Madelung Law Office)

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

Criminal Action:  Aiding and Abetting First Degree Assault

Action Taken by Trial Court:  A jury found appellant guilty of aiding and abetting first degree assault. Subsequently, the trial court sentenced appellant to 25 to 30 years’ imprisonment.

Assignments of Error on Appeal:  Appellant assigns three errors on appeal: 1) the trial court erred in admitting into evidence a video recording of the attack; 2) the State failed to present sufficient evidence to support his conviction; and 3) the trial court erred in imposing an excessive sentence.

Inbody, Riedmann, and Bishop, Judges

Doane University - Wednesday, October 12, 2016 subject to call at 1:30 PM

A-15-1104, State of Nebraska v. Caleb R. Petrick (Appellant)

Sarpy County, District Court Judge David Arterburn

Attorney for Appellant:  Patrick J. Boylan (Public Defender’s Office)

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

Criminal Action:  Caleb R. Petrick was charged with three crimes: Count I, third degree assault of an officer or health care professional; Count II, resisting arrest; and Count III, obstructing a peace officer.

Action Taken by Trial Court:  A jury found Petrick guilty of the above charges, and the district court sentenced him on Count I to 3 to 5 years imprisonment, Count II to 6 to 12 months, and Count III, 6 to 12 months. The sentences on Count I and II run consecutive to each other and the sentence on Count III runs concurrent to Count II.

Assignments of Error on Appeal:  Petrick assigns that the district court erred in: (1) not defining “unreasonable force” for the jury in a jury instruction, (2) not admitting the LaVista Police Department use of force protocols into evidence, and (3) finding that the State adduced sufficient evidence to sustain the convictions on all three counts.

A-16-0012, In re Guardianship and Conservatorship of Lindhurst 

Lancaster County, County Judge Holly J. Parsley

Attorney for Appellant:  Wayne E. Janssen

Attorney for Appellee:  Joel G. Lonowski, Andrew K. Joyce (Morrow, Poppe, Watermeier & Lonowski, P.C.)

Probate Action:  Guardianship and Conservatorship

Action Taken by Trial Court:  The county court appointed one of Dolores Lindhurst’s two daughters as her guardian and conservator.

Assignments of Error on Appeal:  The daughter not chosen to serve as Lindhurst’s guardian and conservator has appealed contending that the county court erred in (1) appointing her sister as Lindhurst’s guardian and conservator; (2) not requiring her sister to pay a bond to serve as guardian and conservator for Lindhurst; and (3) failing to require her sister to reimburse certain amounts to Lindhurst; and failing to require both sisters to be present when Lindhurst’ safe deposit box was first opened and inventoried as stipulated by the parties at the time of the trial. 

A-16-281, Ronny L. Armitage v. Lori R. Armitage (Appellant)

Madison County, District Judge Mark A. Johnson

Attorney for Appellant: Melissa A. Wentling

Attorney for Appellee:  Patricia M. Samuels (Copple, Rockey, McKeever, & Schlecht P.C., L.L.O.)

Civil Action:  Physical Custody Modification

Action Taken by Trial Court:  The district court found there was a material change in circumstances that required a modification of the physical custody of the parties’ two minor children, and found it was in the best interest of the children to award physical custody to Ronny.

Assignment of Error on Appeal:  Restated, Lori assigns that the district court erred in finding a material change in circumstances warranting modification of the divorce decree as to the physical custody of the children.

 

A-16-0104, Tyler F. (Appellant) v. Sara P. & A-16-0105, Geoffrey V. on behalf of J.F., a minor child, (Appellant and Cross-Appellee) v. Sara P.

[These cases have been consolidated on appeal.]

Lancaster County, District Court Judge Steven D. Burns

Attorney for Appellant (Tyler F.):  Andrea Finegan McChesney & Joshua M. Livingston, Senior Certified Law Clerk (McChesney & Farrell Law)

Attorney for Appellant and Cross Appellee (Geoffrey V.):  Joel Bacon & Tara L. Gardner (Keating, O’Gara, Nedved & Peter, PC, LLO)

Attorney for Appellee:  Sara Potter, Pro Se

Civil Action:  Paternity, custody, child support

Action Taken by Trial Court:  The district court determined that Tyler F. is the legal father of J.F. and Geoffrey V. is the biological father. The court awarded custody of J.F. to Tyler subject to parenting time by Sara P. and Geoffrey and ordered Sara and Geoffrey to pay child support.

Assignments of Error on Appeal:  On appeal, Tyler assigns that the district court erred in: (1) finding that Geoffrey had standing to bring a claim as next friend of J.F. and (2) deviating from the Nebraska Child Support Guidelines by treating Sara and Geoffrey combined as the noncustodial parent.

On cross-appeal, Geoffrey assigns that the district court erred in: (1) concluding that Geoffrey had not raised a claim in his individual capacity and (2) evaluating the material mistake of fact question from Sara’s perspective if the court concluded that Tyler’s paternity acknowledgement had to be set aside before determining that Geoffrey had paternity.