State v. Jennings , 312 Neb. 1020 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
12/09/2022 01:07 AM CST
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STATE V. JENNINGS
Cite as 312 Neb. 1020State of Nebraska, appellee, v.
Leandre R. Jennings III, appellant.
___ N.W.2d ___
Filed December 2, 2022. No. S-22-185.
1. Postconviction: Proof: Appeal and Error. When a district court denies
postconviction relief without conducting an evidentiary hearing, an
appellate court determines de novo whether the petitioner has alleged
facts that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no relief.
2. Postconviction: Records: Appeal and Error. The appellate court does
not conduct an appeal of a postconviction review sua sponte; as with
all appeals, the alleged errors of the lower court must be both specifi-
cally assigned and specifically argued in the brief of the party asserting
the errors to be considered by the appellate court. The appellate court
will not scour the record on appeal to understand unclear arguments or
find support for broad conclusions.
3. Effectiveness of Counsel: Appeal and Error. 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,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate
court reviews such legal determinations independently of the lower
court’s decision.
4. Postconviction: Constitutional Law: Proof. The district court must
grant an evidentiary hearing to resolve the claims in a postconviction
motion when the motion contains factual allegations which, if proved,
constitute an infringement of the defendant’s rights under the state or
federal Constitution.
5. Postconviction: Pleadings. The allegations in a motion for postcon-
viction relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary hearing
is justified.
6. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
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Cite as 312 Neb. 1020does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
7. Jury Instructions: Proof: Appeal and Error. In reviewing a claim of
prejudice from jury instructions given or refused, the appellant has the
burden to show that the allegedly improper instruction or the refusal to
give the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
8. Jury Instructions: Appeal and Error. All the jury instructions must
be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the
pleadings and the evidence, there is no prejudicial error necessitat-
ing reversal.
9. Postconviction: Appeal and Error. Upon the filing of a motion seeking
postconviction relief, an appellate court has the obligation to determine
whether the prisoner is entitled to no relief, in which case the motion is
dismissed, or, alternatively, conclude that the defendant is entitled to a
hearing to determine if he or she is entitled to relief.
10. Postconviction: Prosecuting Attorneys: Notice. If a defendant is enti-
tled to an evidentiary hearing on a postconviction motion, the court shall
cause notice to be served on the county attorney.
11. ____: ____: ____. The State, through its county attorneys, can, and
often does, participate at earlier points in the postconviction process,
but is only called upon to take action with respect to a motion once it
receives notice from the court.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Leandre R. Jennings III, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The appellant, Leandre R. Jennings III, was convicted of
first degree murder, use of a weapon to commit a felony, and
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Cite as 312 Neb. 1020possession of a deadly weapon by a prohibited person. He was
sentenced to life imprisonment, 30 to 40 years’ imprisonment,
and 40 to 45 years’ imprisonment, respectively. His convictions
and sentences were affirmed by this court on direct appeal. 1
Jennings then filed a motion seeking postconviction relief,
which was denied without an evidentiary hearing. Jennings
appeals that denial. We affirm.
BACKGROUND
Jennings was convicted of murder and associated crimes
in the shooting death of Michael Brinkman (Brinkman) on
December 23, 2016. The facts underlying those convictions are
set forth in greater detail in this court’s opinion on appeal. 2 In
brief, Brinkman was at his home in Douglas County along with
his wife, Kim Milius, and his adult son, Seth Brinkman (Seth).
Two men entered the home, and following an altercation,
Brinkman was shot and killed. Other evidence was offered at
trial, but as relevant to this postconviction motion, fast food
from Raising Cane’s, including french fries, a piece of partially
eaten Texas toast, and a container and lid of “Cane’s sauce”
was found at the scene. The sauce container and lid and the
toast were swabbed for DNA. Following testing of the DNA,
Jennings could not be excluded as a contributor to these, as
well as other items, and was arrested and charged.
Jennings was convicted in 2018. This court affirmed his
conviction in May 2020, and Jennings thereafter filed a motion
for postconviction relief on May 6, 2021. He subsequently
filed two amended motions. The operative pleading in this case
is the motion for postconviction relief filed on October 6, 2021.
In that motion, Jennings alleged that he had the same trial and
appellate counsel and that both were ineffective in (1) failing
to object to the State’s destruction of evidence; (2) failing to
object to false statements made in law enforcement’s affidavit
1
State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).
2
See id.- 1023 -
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Cite as 312 Neb. 1020in support of a search warrant for his cell phone records; (3)
failing to interview or call certain witnesses; (4) not object-
ing to jury instruction No. 4; (5) failing to seek retesting of
biological material; (6) failing to obtain from law enforcement
evidence that could have been used to impeach law enforce-
ment testimony; and (7) failing to object to testimony offered
by an investigating detective. He further alleged that (8) the
State engaged in prosecutorial misconduct by not disclosing
certain evidence, and (9) the trial court committed trial error
when it admitted Jennings’ cell phone data.
The district court denied Jennings’ motion without an evi-
dentiary hearing. In its order, the court first noted that counsel
could not be found to be ineffective for failing to object to the
State’s destruction of the toast because the record indicates
that the destruction was not made in bad faith, but was part of
a laboratory policy that food could not be stored as evidence.
The court also rejected Jennings’ claims of false statements
regarding the ethnicity of the suspects in the affidavit in sup-
port of the warrant for his cell phone data. The court reasoned
that the issuing magistrate did not rely on the ethnicity of the
suspects in determining probable cause. It rationalized that the
magistrate instead focused on the vehicle reportedly parked
in front of the home at the time of the home invasion and the
relationship between the person who rented that vehicle and
Jennings, who had previously driven the vehicle and whose
DNA was found at the scene of the home invasion.
The court then addressed, and found without merit, Jennings’
claims that his counsel failed to investigate certain witnesses
and issues prior to trial. As set forth by the court, Jennings
alleged that counsel failed to seek DNA retesting, did not
obtain video of Jennings’ time spent in the interrogation room,
and did not call certain witnesses. The district court found that
Jennings’ allegations were conclusory and did not establish
prejudice as required by Strickland v. Washington. 3
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
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Cite as 312 Neb. 1020The court next addressed and rejected Jennings’ claim that
counsel erred in not objecting to jury instruction No. 4. As read
to the jury, that instruction provided:
Depending on the evidence you may return one of two
possible verdicts to Count 1 of the information. You may
find [Jennings], one, guilty of murder in the first degree
felony murder or two not guilty.
Felony murder. The material elements which the State
must prove by evidence beyond a reasonable doubt in
order to convict [Jennings] of murder in the first degree
felony murder as charged in Count 1 of the information
are, one, that . . . Jennings intended to commit the crime
of robbery. And two, that on or about December 23rd
2016, in Douglas County, Nebraska, [Jennings] was in
the course of committing or attempting to commit that
robbery. And three, that [Jennings] either alone or by
aiding and abetting another killed . . . Brinkman dur-
ing the course of committing or attempting to commit
that robbery.
A person commits robbery if, with the intent to steal,
forcibly and by violence, or by putting in fear, take from
the person of another any money or personal property of
any value whatever.
A person commits attempted robbery if he intended to
commit a robbery and he intentionally engaged in con-
duct that under the circumstances as he believed them
to be was a substantial step towards committing the rob-
bery and the person[’]s conduct strongly corroborated his
intent to commit robbery.
The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing material
elements of the crime of murder in the first degree felony.
If you find from the evidence beyond a reasonable doubt
that each of the foregoing material elements is true, it is
your duty to find [Jennings] guilty of murder in the first
degree felony murder as charged in Count 1.
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Cite as 312 Neb. 1020On the other hand, if you find the State has failed to
prove beyond a reasonable doubt any one or more of
the foregoing material elements, it is your duty to find
[Jennings] not guilty.
The burden of proof is always on the State to prove
beyond a reasonable doubt all of the material[] elements
of the crime charge[d] and this burden never shifts.
Jennings takes issue with the language at the end of the
opening paragraph that he “either alone or by aiding and
abetting another killed . . . Brinkman during the course of
committing or attempting to commit that robbery.” The dis-
trict court noted that the instruction was a correct statement
of the law and that Jennings offered no argument or authority
to show otherwise.
The district court then addressed and found without merit
Jennings’ contention that one of the investigating officers
falsely testified with respect to alleged inconsistent statements
made by a witness. The district court noted that Jennings did
not identify where these statements were made in the record,
and it further noted that trial counsel’s decisions about making
certain objections were generally considered to be trial strat-
egy, for which counsel is afforded due deference.
Finally, the district court rejected Jennings’ claims of pros-
ecutorial misconduct and trial court error, concluding those
issues were procedurally barred.
ASSIGNMENTS OF ERROR
On appeal, Jennings assigns, restated, that the district court
erred (1) in denying his motion for postconviction relief
without an evidentiary hearing because his trial counsel was
ineffective in failing to (a) object to the destruction of the
toast found at the scene, (b) object to false statements made
in the affidavit and warrant seeking his cell phone records, (c)
investigate certain witnesses, (d) object to jury instruction No.
4, and (e) object to the testimony of Det. Larry Cahill, and (2)
by denying his motion without first giving him an opportunity
to respond to the State’s reply.
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Cite as 312 Neb. 1020STANDARD OF REVIEW
[1,2] When a district court denies postconviction relief
without conducting an evidentiary hearing, an appellate court
determines de novo whether the petitioner has alleged facts
that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no
relief. 4 The appellate court does not conduct this review sua
sponte, however; as with all appeals, the alleged errors of the
lower court must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the errors to be
considered by the appellate court. 5 The appellate court will not
scour the record on appeal to understand unclear arguments or
find support for broad conclusions. 6
[3] With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland, an appellate court reviews such legal
determinations independently of the lower court’s decision. 7
ANALYSIS
Postconviction Propositions of Law.
[4-6] The district court must grant an evidentiary hearing
to resolve the claims in a postconviction motion when the
motion contains factual allegations which, if proved, con-
stitute an infringement of the defendant’s rights under the
state or federal Constitution. 8 However, the allegations in a
motion for postconviction relief must be sufficiently specific
for the district court to make a preliminary determination as
to whether an evidentiary hearing is justified. 9 An evidentiary
hearing is not required on a motion for postconviction relief
4
State v. Lessley, ante p. 316, 978 N.W.2d 620 (2022).
5
Id.6
Id.7
State v. Ellis, 311 Neb. 862, 975 N.W.2d 530 (2022). See Strickland v.
Washington, supra note 3.
8
State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
9
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Cite as 312 Neb. 1020when (1) the motion does not contain factual allegations
which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable;
(2) the motion alleges only conclusions of fact or law without
supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. 10
Disposal of Texas Toast.
Jennings first assigns that the district court erred in not
granting him an evidentiary hearing on his assertion that coun-
sel was ineffective in its handling of the Texas toast found at
the crime scene. In his brief, Jennings argues that his counsel
was ineffective because he failed “to suppress the intentional
destruction of any biological material evidence.” 11 He also
argues that counsel was ineffective in failing to seek indepen-
dent DNA testing because retesting of the material “would
have likely exonerated or exculpated [him]” 12 and “could have
implicated other suspects.” 13 Finally, Jennings argues that law
enforcement “acted in bad faith when they did not assess
the evidentiary value nor did they consult [Jennings] before
destroying any evidence.” 14
Jennings’ assertion is without merit. Even assuming we
could conclude that Jennings’ trial counsel was deficient in
failing to object to the destruction of evidence, which occurred
prior to counsel’s representation of Jennings and in fact prior
to Jennings’ identification as a suspect and subsequent arrest,
Jennings cannot show that he was prejudiced by the destruc-
tion of the toast.
As we understand Jennings’ allegations, he asserts that
retesting or further testing of the DNA evidence from the toast
10
Id.11
Brief for appellant at 34.
12
Id. at 35.
13
Id. at 36.
14
Id. at 35.
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Cite as 312 Neb. 1020would prove exculpatory. But destruction of the toast is dis-
tinct from the sample of DNA swabbed from that toast. The
record shows that a swab was taken and that not all of the
sample was consumed. Thus, the potential for further testing
exists, given the appropriate circumstances and utilization of
the correct procedure.
Moreover, even if the DNA from the toast would have been
excluded as a result of the allegedly improper destruction of
the toast, that DNA was not the only DNA found at the scene.
Just as Jennings could not be excluded from the toast sample,
he was also not excluded from the DNA found on the sauce
container and lid, or from a shower rod which Seth testified
he used to fend off the home invaders. Given this other DNA
evidence, Jennings cannot show that he was prejudiced by the
admission of the DNA found on the toast.
We turn next to Jennings’ allegation that his counsel was
ineffective in failing to seek DNA retesting. It is not clear
whether Jennings asserts that all DNA should have been
retested or that only the DNA on the toast should have been
retested. But in either case, Jennings has failed to allege any
circumstances which would have supported retesting at this
stage. For example, Jennings does not allege that there are
questions about the trustworthiness of the testing procedure
or that improved testing methods were available and should
have been employed over the methods utilized. Given the
lack of such allegations, we cannot find that counsel was
deficient in failing to seek retesting.
There is no merit to Jennings’ assignment of error.
Warrant for Cell Phone Data.
Jennings also assigns that his counsel was ineffective in
­failing to object to false statements in the affidavit in sup-
port of the State’s application for a search warrant to obtain
Jennings’ cell phone records. Specifically, Jennings con-
tends that when Milius called the 911 emergency dispatch
serv­ice following the home invasion, she reported that the
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Cite as 312 Neb. 1020perpetrators had ­been white, but that the affidavit averred
that Milius indicated the perpetrators were Black. Jennings
contends that at the least, the magistrate was misled, and that
at the most, the magistrate “abandoned his or her detached
and neutral judicial role” by not denying the warrants. 15
A review of the record demonstrates there is no merit to this
assertion. While Milius did initially indicate that she thought
at least one of the perpetrators was white, the victim’s son,
Seth, indicated that both were Black. It is evident from the
record that Milius was uncertain initially, while Seth was more
certain. Thus, the indication in the affidavit that the perpetra-
tors were Black was not wholly incorrect.
Moreover, as the district court, and to a lesser extent the
State, indicated, the crux of the affidavit in support was the
“nexus between [Carnell Neal] Watt, the newer model
white SUV parked in front of [Michael’s home] during
the time of the home invasion, the 2016 Dodge Durango
SU[V] rented by Watt during that time, [and] Watt’s
statements that she allowed [Jennings] to use the Dodge
Durango, and [Jennings’] DNA at the crime[] scene.”
There is no indication from the warrant or the affidavit
that the ethnicity of the perpetrators had an impact on the
magistrate’s decisionmaking process in authorizing the cell
phone warrant.
The district court did not err in denying Jennings’ postcon-
viction relief with respect to this allegation, and there is no
merit to this assignment of error.
Failure to Investigate Witnesses.
Jennings next assigns that his counsel was ineffective in
failing to investigate and call as witnesses three individuals:
Dominique Davis, the 911 operator, and Wally Poderys. In
addition, at oral argument in this case, Jennings indicated that
counsel failed to properly investigate Carnell Neal Watt and
15
Id. at 40.
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Cite as 312 Neb. 1020an unidentified law enforcement officer. But he did not other­
wise raise either of those individuals in his brief or in his
underlying motion, so we do not address either on appeal.
We turn first to Davis. Jennings alleged in his motion that
Davis “may provide relevant information pertaining to [his]
alibi” and that Davis was “willing to testify about her numer-
ous encounters with . . . Jennings including information about
. . . Jennings’ frequent visits to her home unannounced and his
attempts to conceal their relationship from . . . Watt.” Jennings
alleged that Davis’ “testimony could have been used to impeach
the testimony of other witnesses as to . . . Jennings[’] where-
abouts, demeanor and actions at or around [the] time of [the]
incident” and that if “Davis [was] interviewed or called as a
witness the testimony could have cleared [Jennings] or impli-
cated other suspects or provided alternative theories of defense
and the failure to do so prejudiced . . . Jennings.”
The district court found, and we agree, that the allegations
regarding Davis’ testimony were conclusory. Jennings alleges
that Davis could have cleared him, implicated others, or pro-
vided alternative theories of the defense. But Jennings does
not explain precisely to what Davis would testify that would
provide him an alibi or explain who, if not Jennings, murdered
Brinkman. Nor does Jennings provide an alternative theory of
defense to the one Jennings employed, which was apparently
that he did not kill Brinkman and was not present. Jennings has
not adequately pled this assertion, and accordingly, we find it
to be without merit.
Jennings also argues that counsel was ineffective in failing
to interview or call the 911 operator that answered Milius’ call
to emergency services. Jennings claims that the 911 operator
“changed the racial description of the suspects after hanging
up the original call from Milius.” Jennings alleges that the
operator’s testimony could have been used “to impeach the tes-
timony of [the] others about the reported information.”
The record demonstrates that Milius was initially uncertain
about the ethnicity of the perpetrators, while Seth was certain
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Cite as 312 Neb. 1020that they were Black males. As noted above, the crux of the
warrant was not the fact that one of the perpetrators was ini-
tially identified as white. The crux was that a vehicle matching
the description of a vehicle that Jennings had access to was
parked at the scene of the home invasion, that Jennings’ DNA
was found at the scene of the home invasion, and that these
items provided probable cause for the warrant. Interviewing or
further investigating the 911 operator would not have changed
this result. There is no merit to this assertion.
Jennings next contends that his counsel was ineffective for
failing to call Poderys. Jennings alleges that testimony from
Poderys—who by the time of trial was deceased—could have
“provided a motive to commit the underlying felony and pro-
vide some exculpatory evidence,” because of Poderys’ “toxic
relationship with Brinkman and the recent threat[en]ing text
messages Brinkman received about an old debt.” The district
court rejected this claim, addressing Jennings’ failure to inves-
tigate allegations globally and reasoning that the allegations
in Jennings’ motion were “generic and most importantly, do
not state what exculpatory evidence would have been gathered
or how such evidence would have changed the outcome of
the trial.”
We agree these allegations were conclusory in nature. In his
motion, Jennings does not explain what motive Poderys had or
explain the nature of the toxic relationship between Poderys
and Brinkman, except to explain it involved an “old debt.”
Jennings does not explain what Poderys would testify to that
would have led to a different result in Jennings’ trial. For these
reasons, there is no merit to this assignment of error.
Jury Instruction No. 4.
Jennings also contends that the district court erred in giving
jury instruction No. 4. The full instruction is set forth above.
In short, Jennings contends that the portion of the instruction
that stated Jennings could be found guilty “either alone or
by aiding and abetting another” was an incorrect statement
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Cite as 312 Neb. 1020of the law and “shifts [the] burden of ‘beyond a reasonable
doubt’ to [Jennings].”
[7,8] In reviewing a claim of prejudice from jury instruc-
tions given or refused, the appellant has the burden to show
that the allegedly improper instruction or the refusal to give
the requested instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 16 All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal. 17
We first observe that Jennings directs us to no authority
suggesting that the challenged language from jury instruc-
tion No. 4 was an incorrect statement of the law. In fact, this
court implicitly approved of this very same instruction in State
v. Pope. 18
We agree that the language highlighted by Jennings is not
part of the usual pattern jury instruction for felony murder.
But that pattern instruction does not, itself, encompass an
aider and abettor situation; rather, it envisions a single defend­
ant. However, there is also a pattern instruction that covers
the situation where there is potential aider and abettor culpa-
bility. 19 That instruction was also given. When all the instruc-
tions are given together, it is clear that the additional language
in jury instruction No. 4 was to cover the gap between the
felony murder and the aider and abettor instructions and make
them consistent.
Moreover, Jennings claims that the challenged language
shifted the burden of proof. He does not explain how the lan-
guage does this, nor does he cite to any authority in support
of his argument. In any event, the jury was instructed that
16
State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).
17
Id.18
Id.19
See NJI2d Crim. 3.8 (aider is same crime as principal).
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Cite as 312 Neb. 1020the State always had the burden of proof and that the burden
never shifted to Jennings. We find no merit to this assignment
of error.
Failure to Object to Cahill’s Testimony.
Jennings assigns that his counsel erred in failing to object
to testimony from Cahill, a detective with the Omaha Police
Department. Jennings argues that Cahill should not have been
permitted to testify to the contents of a statement made by
Watt regarding Jennings’ use of a vehicle rented by Watt. In his
motion, Jennings alleged that Cahill “changed” Watt’s state-
ment from one indicating that she was not sure whether she
loaned that vehicle to Jennings, to a statement indicating that
she had loaned the vehicle, and that such “change” violated
Jennings’ right to due process. In his brief on appeal, Jennings
argues that Cahill should not have been permitted to testify
to the substance of Watt’s remarks because she pled the Fifth
Amendment and did not testify.
This allegation is not supported by the record. The record
affirmatively demonstrates that neither Cahill nor any other
law enforcement witness testified at trial as to the content of
any conversation had with Watt regarding Jennings’ use of
a vehicle rented by Watt. As such, we find no merit to this
assignment of error.
Opportunity to Respond to State’s Reply.
Finally, Jennings assigns that the district court erred in deny-
ing his postconviction motion without giving him the opportu-
nity to respond to the State’s reply to his motion.
[9-11] We recently set out the postconviction procedure in
State v. Burries, 20 in which we noted that the only required
pleading in a postconviction action was the motion seeking
relief. “Upon the filing of that motion, the court has the obliga-
tion to determine whether the prisoner is entitled to no relief,
20
State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
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Cite as 312 Neb. 1020in which case the motion is dismissed, or, alternatively, con-
clude that the defendant is entitled to a hearing to determine if
he or she is entitled to relief.” 21 If a defendant is entitled to a
hearing, then the court shall cause notice to be served on the
county attorney. While “the State, through its county attorneys,
can, and often does, participate at earlier points in the process,
the State is only called upon to take action with respect to a
motion once it receives notice from the court.” 22
There is nothing in the language of the Nebraska
Postconviction Act that allows any type of response from a
defendant prior to the dismissal of his motion. Thus, the court
did not err insofar as it did not specifically request or order
such a filing. Nor is there any indication from this record
that Jennings was prohibited from filing such a response.
The State’s response was served on Jennings on October 12,
2021, and not dismissed by the district court until February
24, 2022, suggesting that Jennings would have had ample
opportunity to, at a minimum, seek to file a response. Jennings
does not argue that any attempt to do so was denied by the
court, and there is no other suggestion in the record that such
a denial took place.
There is no merit to Jennings’ final assignment of error.
CONCLUSION
The judgment of the district court denying Jennings’ motion
for postconviction relief without an evidentiary hearing is
affirmed.
Affirmed.
21
Id. at 693, 969 N.W.2d at 100.
22
Id.