State v. Dehning , 296 Neb. 537 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
06/23/2017 01:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. DEHNING
Cite as 296 Neb. 537
State of Nebraska, appellee, v.
Eddie H. Dehning, appellant.
___ N.W.2d ___
Filed April 27, 2017. No. S-16-761.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. Sentences: Appeal and Error. An appellate court will not disturb a
sentence imposed within the statutory limits absent an abuse of discre-
tion by the trial court.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Sentences. When imposing a sentence, the sentencing court should cus-
tomarily consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the violence
involved in the commission of the offense. However, the sentencing
court is not limited to any mathematically applied set of factors.
5. ____. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defend­
ant’s demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life.
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STATE v. DEHNING
Cite as 296 Neb. 537
Appeal from the District Court for Deuel County: Derek C.
Weimer, Judge. Affirmed.
Steven E. Elmshaeuser for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Eddie H. Dehning, the appellant, was charged with exploita-
tion of a vulnerable adult and theft by unlawful taking. After
a trial, the jury found Dehning guilty on both counts. The
district court sentenced Dehning to imprisonment of 60 to 60
months for the conviction of exploitation of a vulnerable adult
and imprisonment of 5 to 10 years for the theft conviction,
with the sentences to run consecutively. The sentences were
also ordered to be served consecutively to Dehning’s sentences
resulting from a separate criminal case. Dehning appeals.
We affirm.
STATEMENT OF FACTS
On April 2, 2015, Dehning was charged by information
with two counts: Count I was exploitation of a vulnerable
adult, a Class IIIA felony, and count II was theft by unlaw-
ful taking, a Class III felony. The information alleged that
from approximately January 1, 2011, to December 31, 2013,
Dehning had exploited a vulnerable adult, specifically his
mother, Cora Bell Dehning (Cora Bell), and that he had stolen
property from Cora Bell having an aggregate value of more
than $1,500.
Dehning pled not guilty to the charges, and a jury trial
was held on April 25 and 26, 2016. The State called 10
witnesses, including bank employees, members of Dehning
and Cora Bell’s family, a physician’s assistant, the former
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sheriff who investigated the case, and Julie Collins, Dehning’s
­ex-­girlfriend. Dehning testified in his own behalf.
The evidence adduced at trial generally showed that Cora
Bell and her husband had two children: Dehning and his
sister. After Cora Bell’s husband retired in the early to mid-
1980’s, they moved to Sidney, Nebraska. Cora Bell’s husband
died in 1988, and after his death, Cora Bell continued to live
independently in Sidney.
Dehning became Cora Bell’s power of attorney in February
2011. In June 2011, Cora Bell moved from Sidney to Big
Springs, Nebraska, which was closer to where Dehning
lived. After Cora Bell was found at her home unconscious in
December 2012, she was moved to an assisted living facil-
ity in February 2013. Later in 2013, Cora Bell was facing
eviction from the assisted living facility, and in November
2013, Marvin Remington, Cora Bell’s younger brother, and
James Fraker, Cora Bell’s nephew, became Cora Bell’s powers
of attorney.
Many of the witnesses testified regarding the mental state
of Cora Bell. Remington testified that in 2007, Cora Bell
“started having a little bit of [a] mind problem like she wasn’t
really thinking clearly like she always did before.” He testi-
fied that in 2009, he noticed that Cora Bell would mix up
her medications or forget to take them. James Fraker testified
that in 2009 or 2010, he started to notice that Cora Bell was
displaying signs of dementia. James Fraker stated that Cora
Bell was repeating herself frequently and that by 2011, she
was becoming forgetful and having a hard time carrying on
a normal conversation. The former sheriff of Deuel County
testified that he was informed by Dehning; James Fraker; and
James Fraker’s wife, Paula Fraker, that Cora Bell was suffer-
ing from dementia.
Collins also testified regarding Cora Bell’s mental state.
Collins testified that Cora Bell moved from Sidney to Big
Springs so Dehning and Collins could check on her more
easily. Collins stated that she would go to Cora Bell’s house
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frequently to make sure Cora Bell took her medication. Collins
testified that she was concerned about Cora Bell’s eating habits
because she was losing a lot of weight and that she noticed
“a decrease of her personal hygiene.” Collins further stated
that starting in 2011, Cora Bell would forget the names of
Collins’ children.
A physician’s assistant, Lisa Regier, testified that she had
treated Cora Bell from October 2011 through June 2012.
In October 2011, after Regier learned that Cora Bell would
sometimes forget to take her medication, Regier ordered an
MRI. On November 21, after receiving the results of the MRI,
Regier informed Cora Bell that she had what appeared to be
Alzheimer’s disease. Regier gave Cora Bell a “Mini-Mental
Status Exam” on December 23, and based on the results of
that examination, Regier determined that Cora Bell had mild or
moderate Alzheimer’s disease. Regier prescribed two medica-
tions to Cora Bell to slow the progression of the disease. On
June 1, 2012, Regier met with Cora Bell again, and Regier
testified that at that point, “it was obvious that the Alzheimer’s
disease was [a]ffecting [Cora Bell’s] memory” and that it was
“difficult for her to manage independently at that time.” Regier
testified that although June 1 was the first time she really noted
that it was difficult for Cora Bell to function independently,
she had concerns about Cora Bell’s ability to care for herself
beginning in November 2011.
With respect to Cora Bell’s financial situation, the evi-
dence adduced at trial showed that in 2013, other members of
Cora Bell’s family became aware that she was facing eviction
from her assisted living facility, and as a result, they became
involved in Cora Bell’s financial affairs. As noted above, in
November 2013, Remington and James Fraker became Cora
Bell’s powers of attorney. At trial, the State offered and the
court received the bank records for two of Cora Bell’s accounts
and two of Dehning’s accounts.
After Remington and James Fraker became Cora Bell’s
powers of attorney, they began examining Cora Bell’s bank
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records for the time that Dehning had been her power of attor-
ney. Remington testified that in examining the bank records,
he noticed a debit card was frequently used, but that Cora Bell
“hardly ever used a debit card.” Remington further stated that
Dehning had
opened a bank account at [a bank] in Big Springs for
her and he was always transferring money around but he
might take $2,500 out of [a] bank in Sidney . . . and he’d
move it to Big Springs but when he put the money in the
bank in Big Springs it would be usually [$]2,000 depos-
ited and [$]500 missing.
Remington further testified that Dehning had rented out Cora
Bell’s house located in Sidney but that very little of the rent
money was deposited into Cora Bell’s bank accounts.
James Fraker testified that after becoming power of attorney
along with Remington, they both noticed that Cora Bell had
very little money in her bank accounts. James Fraker testified
that after further investigation, “it was kind of evident that
[Dehning] had been taking some of [Cora Bell’s] money and
spending it.” Similar to Remington’s testimony, James Fraker
testified that Dehning would transfer money between Cora
Bell’s bank account in Sidney and her account in Big Springs
and that
during the transfer he would take cash out, like I say if
he took $1,500 out of [the] bank in Sidney and transfer
[sic] it over to the bank in Big Springs maybe [$]1,200 or
$1,100 would show up and the rest would be taken out.
You could see on the deposit slip there would always be a
deduction out for cash.
James Fraker further testified that Cora Bell’s debit card was
used and automated teller machine withdrawals occurred
in areas of Nebraska to which Cora Bell would not have
traveled.
Paula Fraker testified that she examined Cora Bell’s bank
accounts along with Remington and James Fraker. She testi-
fied that she prepared spreadsheets regarding Cora Bell’s
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finances to show the investigators involved in this case. Paula
Fraker testified that in examining Cora Bell’s bank accounts,
she made the following observations: Dehning would pay his
utility bill from Cora Bell’s account, the first time there was
use of a debit card from Cora Bell’s account was after Dehning
became power of attorney, there was an instance when $1,500
went missing from Cora Bell’s bank accounts, the $700
monthly rent check for Cora Bell’s house in Sidney was being
deposited into Dehning’s account, and many other transactions
that Paula Fraker found suspicious, including a check made
out to the “Keith Co. Treasurer” for $609.12 when Cora Bell
did not own any property in Keith County, Nebraska.
Numerous voluminous bank records from two of Cora
Bell’s accounts and two of Dehning’s accounts were received
in evidence. These formed part of the basis on which the State
relied to prove the amount of the theft alleged in count II.
Collins also testified regarding Cora Bell’s finances. She
stated that after receiving the rent for Cora Bell’s house
in Sidney, Dehning would deposit the money into his bank
account. Collins further testified that Dehning once purchased
a shed to be used at his house and that he paid for it with a
check drawn on Cora Bell’s bank account. Collins also testi-
fied that Dehning purchased many guns and electronics in 2012
and 2013.
After the State concluded the presentation of its case in
chief, Dehning moved for a “directed verdict.” The district
court overruled Dehning’s motion.
Dehning testified in his own behalf. Dehning generally tes-
tified that he had Cora Bell’s permission and consent for all
of the financial transactions that were being questioned. He
testified: “I had permission to do anything I wanted to do.”
Dehning also testified that Cora Bell was present with him for
many of the automated teller machine withdrawals that were
at issue.
As a specific example of Cora Bell’s permission and to
rebut Collins’ testimony, Dehning testified that he had Cora
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Bell’s permission to install the shed that he used at his house.
In this regard, Dehning testified that Cora Bell initially stated
she wanted a shed to store equipment that would not fit in her
garage, so he ordered a shed. Dehning stated on direct testi-
mony that after he explained to Cora Bell that a spruce tree, an
oak tree, and a fence would need to be removed to install the
shed, Cora Bell said to Dehning, “you’re not cutting up those
trees for a storage shed. And I already ordered the storage
she[d]. . . . Well, take it to your house because it’s not coming
here if we’ve got to tear the hell out of everything.”
Regarding his defense that he had Cora Bell’s consent,
Dehning testified that Cora Bell had specifically told him that
“any of her money was [Dehning’s] money.” He also testi-
fied that Cora Bell did not have a good relationship with her
daughter, and Dehning stated that Cora Bell told him: “[Y]ou
don’t be leaving money in the bank, you keep that money
moving so your sister don’t get it. It’s your money.”
After the trial concluded, the jury returned a verdict of
guilty on both counts, with the theft valued at $32,447.28.
A sentencing hearing was held on July 11, 2016. The
district court sentenced Dehning to imprisonment of 60 to
60 months for the conviction of exploitation of a vulner-
able adult and to imprisonment of 5 to 10 years for the theft
conviction, with the sentences to run consecutively. The
sentences were also ordered to be served consecutively to
Dehning’s previous sentences resulting from a separate crimi-
nal case in Keith County. Dehning was not given credit for
time served, because he was in prison on the separate previ-
ous criminal case.
Dehning appeals.
ASSIGNMENTS OF ERROR
Dehning claims that his convictions should be reversed
because there was insufficient evidence to prove he was guilty
beyond a reasonable doubt and the district court erred by
imposing excessive sentences.
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STATE v. DEHNING
Cite as 296 Neb. 537
STANDARDS OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. McCurry, ante p. 40, 891
N.W.2d 663 (2017).
[2,3] We will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
court. State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).
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. Id.
ANALYSIS
The Evidence Was Sufficient:
Exploitation of a
Vulnerable Adult.
Dehning contends that the evidence failed to show that
Cora Bell was a “vulnerable adult” and that therefore, his con-
viction of count I, exploitation of a vulnerable adult, should be
vacated. We do not agree.
Dehning was convicted under Neb. Rev. Stat. § 28-386
(Cum. Supp. 2012), which states in subsection (1):
A person commits knowing and intentional abuse, neglect,
or exploitation of a vulnerable adult or senior adult if he
or she through a knowing and intentional act causes or
permits a vulnerable adult or senior adult to be:
(a) Physically injured;
(b) Unreasonably confined;
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(c) Sexually abused;
(d) Exploited;
(e) Cruelly punished;
(f) Neglected; or
(g) Sexually exploited.
Neb. Rev. Stat. § 28-371 (Reissue 2008) defines a “[v]ulnerable
adult” as “any person eighteen years of age or older who has
a substantial mental or functional impairment or for whom a
guardian or conservator has been appointed under the Nebraska
Probate Code.” “Substantial mental impairment” is defined as
“a substantial disorder of thought, mood, perception, orienta-
tion, or memory that grossly impairs judgment, behavior, or
ability to live independently or provide self-care as revealed by
observation, diagnosis, investigation, or evaluation.” Neb. Rev.
Stat. § 28-369 (Reissue 2016).
Dehning focuses on the timeframe alleged in the infor-
mation, January 1, 2011, to December 31, 2013. He essen-
tially asserts that because Cora Bell lived independently until
December 2012, she was not vulnerable for at least some of the
time period charged.
In an appeal of a criminal conviction, we review the evi-
dence in a light most favorable to the prosecution. See State
v. McCurry, supra. There was testimonial evidence that Cora
Bell had “mind problem[s]” and difficulty taking medication
in 2007, that she suffered from confusion in 2009, and that
Dehning was made Cora Bell’s power of attorney in February
2011 because of her impairment. Regier diagnosed Cora Bell
with Alzheimer’s disease in December 2011.
Taken together, the evidence shows that Cora Bell was
not merely experiencing undifferentiated aging. See State
v. Rakosnik, 22 Neb. Ct. App. 194, 849 N.W.2d 538 (2014)
(affirming convictions where evidence established elements of
exploitation of vulnerable adult). Compare State v. Stubbs, 252
Neb. 420, 562 N.W.2d 547 (1997) (reversing conviction where
evidence showed natural aging). Consistent with § 28-369
quoted above, proof that an individual suffers “[s]ubstantial
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mental impairment” can consist of observations of the adult’s
behavior, and we do not read the statute to require expert
opinion. In this case, numerous witnesses testified as to their
observations of Cora Bell’s mental impairment. A rational trier
of fact could have found beyond a reasonable doubt that Cora
Bell’s condition met the criteria of “vulnerable adult” under
the statute, and thus, the elements of the crime during the
period alleged were established. See State v. McCurry, ante p.
40, 891 N.W.2d 663 (2017). We reject Dehning’s assignment
of error.
The Evidence Was Sufficient:
Theft by Unlawful Taking.
Dehning contends that because he testified that Cora Bell
gave him consent for the challenged transactions, the prosecu-
tion failed to establish the elements of the crime of theft by
unlawful taking beyond a reasonable doubt. Dehning’s argu-
ment rests on our acceptance that Dehning’s testimony was
credible, but this argument contradicts our standard of review.
In reviewing a sufficiency of the evidence claim, we do not
pass on the credibility of witnesses—that is for the trier of fact.
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt. State v.
McCurry, supra. We reject Dehning’s argument.
Dehning was convicted of count II, violating Neb. Rev. Stat.
§ 28-511(2) (Reissue 2016), which states: “A person is guilty
of theft if he or she transfers immovable property of another
or any interest therein with the intent to benefit himself or her-
self or another not entitled thereto.” The theory of Dehning’s
defense and his argument on appeal are that because he offered
evidence as quoted above in our “Statement of Facts” to the
effect that Cora Bell had given him consent to use her property,
he did not have the requisite intent to benefit himself with-
out entitlement.
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This court has stated that consent is a valid defense to theft
by taking under the related subsection, § 28-511(1), regard-
ing movable property, and we logically recognize consent as
a defense under § 28-511(2) at issue in this case. See State
v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994), overruled
on other grounds, State v. Stolen, 276 Neb. 548, 755 N.W.2d
596 (2008). However, although Dehning claimed in his testi-
mony that Cora Bell consented to the challenged transctions,
the jury as trier of fact was free to find Dehning’s testimony
incredible and reject Dehning’s defense where the prosecution
by its evidence carried its burden of proving the elements of
theft by unlawful taking under § 28-511(2) beyond a reason-
able doubt. The record demonstrates that the prosecution met
its burden.
As recited in our “Statement of Facts,” not repeated here,
there was legally sufficient evidence to support this conviction.
Such evidence included that the rental income from Cora Bell’s
house in Sidney was rarely deposited to her accounts, Dehning
made transfers between accounts but withdrew cash in the
exchange, and Dehning used Cora Bell’s money to buy items
for his benefit, including guns and computers. The trier of fact
could reasonably conclude that such takings were done with
intent to benefit Dehning without Cora Bell’s consent. And a
defendant can be guilty of theft by unlawful taking, even if the
defendant holds power of attorney. See State v. Rakosnik, 22
Neb. Ct. App. 194, 849 N.W.2d 538 (2014). We reject this assign-
ment of error.
The Sentences Were Not Excessive.
Dehning claims that the district court erred in imposing
excessive sentences and failing to sentence him to probation.
We find no merit to this assignment of error.
[4,5] We have stated that when imposing a sentence, the
sentencing court should customarily consider the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past criminal record or record
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of law-abiding conduct, and (6) motivation for the offense,
as well as (7) the nature of the offense and (8) the violence
involved in the commission of the offense. However, the sen-
tencing court is not limited to any mathematically applied set
of factors. State v. Artis, ante p. 172, ___ N.W.2d ___ (2017).
The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. Id.
Dehning claims that his prior criminal history is minimal
and that probation would be a more appropriate sentence,
because it would permit Dehning to regain employment and
pay restitution to Cora Bell. He was sentenced to 60 to 60
months in prison for count I, exploitation of a vulnerable adult,
and 5 to 10 years in prison for count II, theft by unlawful
taking. Dehning does not assert that the sentences exceed the
statutory limitations. We determine that the court did not abuse
its discretion in sentencing Dehning as it did.
We have reviewed the explanations given by the sentencing
court and find them to be consistent with controlling statutes
and not an abuse of discretion. In denying probation, the court
stated at the sentencing hearing that
a lesser sentence than imprisonment would depreciate
from the seriousness of your offense or promote a disre-
spect for the law. . . . [T]here is a need for . . . correc-
tional service or an institutionalization . . . and the . . .
court finds that there is a substantial risk that you would
engage in additional criminal conduct if you were placed
on a period of probation.
With respect to Dehning’s demeanor and the nature of the
offenses, the court stated that
I was present for the entirety of your trial . . . . I listened
to the evidence, I listened to your testimony at the time of
the trial and the jury reached a verdict that they reached.
The issue among others for me in this particular case is
what I think is the callousness with which you spent the
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resources that your mother and your father had worked
hard their entire lives to generate . . . I found your testi-
mony at the time of the trial to be completely incredible
which means that I didn’t believe it.
The record includes a presentence investigation report and
an update thereto. These show that Dehning’s prior crimi-
nal history includes the following: a conviction of terroristic
threats in 1980 with 3 years’ probation; a conviction for dis-
turbing the peace in 1986; a conviction for cruelly mistreating
an animal in 2004; a speeding ticket in 2004; and convictions
in Keith County in 2014 for second degree assault, third
degree domestic assault, tampering with a witness, and viola-
tion of a protection order, for which Dehning was sentenced
to prison.
Given the facts and the court’s proper considerations, the
court did not abuse its discretion when it imposed the sentences
recited above. We find no merit to this assignment of error.
CONCLUSION
Dehning was convicted of exploitation of a vulnerable
adult and theft by unlawful taking. The evidence was suffi-
cient, and we affirm these convictions. The court’s sentences
were not an abuse of discretion. We affirm the convictions
and sentences.
A ffirmed.