State v. Burke ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2016 12:10 PM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
State of Nebraska, appellee, v. Melanie M. Burke,
also known as Melanie M. M arshall, appellant.
___ N.W.2d ___
Filed March 8, 2016. No. A-15-293.
1. Pleadings. A judicial admission is a formal act done in the course of
judicial proceedings.
2. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
unequivocal, and they do not extend beyond the intent of the admission
as disclosed by its context.
3. Pleadings. Judicial admissions must occur within judicial proceedings
and occur within the case being tried.
4. Administrative Law. Administrative proceedings are not judicial and
are without judicial effect.
5. Directed Verdict: Waiver. Where a defendant makes a motion for a
directed verdict at the end of the State’s case, whether ruled upon or not,
and the defendant thereafter presents evidence, the defendant has waived
any error in connection with the motion for directed verdict made at the
end of the State’s case.
6. Criminal Law: Intent: Proof: Circumstantial Evidence. When an ele-
ment of a crime involves existence of a defendant’s mental process or
other state of mind of an accused, such elements involve a question of
fact and may be proved by circumstantial evidence.
7. Criminal Law: Intent: Circumstantial Evidence. Intent may be
inferred from the words and acts of the defendant and the circumstances
surrounding her conduct.
8. Criminal Law: Public Assistance. A person commits the offense of
violation of public assistance when he or she, by means of a willfully
false statement or representation, obtains or attempts to obtain any
supplemental nutrition assistance program benefit or electronic benefit
card, or any payment to which such individual is not entitled, or a larger
payment than to which he or she is entitled.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
9. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
10. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested jury instruction, an
appellant has the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction is warranted by
the evidence, and (3) the appellant was prejudiced by the court’s refusal
to give the tendered instruction.
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed.
William J. Erickson and Blaine T. Gillett for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Pirtle, R iedmann, and Bishop, Judges.
R iedmann, Judge.
INTRODUCTION
Melanie M. Burke, also known as Melanie M. Marshall,
appeals from her conviction in the district court for Lincoln
County, Nebraska, for the crime of “Violation of Public
Assistance.” After our review of the record on appeal,
we affirm.
BACKGROUND
Burke was convicted by a jury of violation of public assist­
ance, a Class IV felony. In June, August, and September
2010, Burke submitted a series of applications for the State’s
Supplemental Nutrition Assistance Program (SNAP). The
State’s case centers on Burke’s failure to report her husband’s
workers’ compensation income after her first application. The
State also highlights other changes Burke made to her subse-
quent applications, including her valuation of the household’s
vehicles and her eventual exclusion of her husband as a house-
hold member.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
Burke’s first application in June 2010 listed herself; her
husband, Stephen Marshall (Stephen); and her six children
as members of her household. Burke reported that Stephen
received $644 per week in workers’ compensation bene-
fits. She also listed five household vehicles, most notably
a Chevy Tahoe with a $4,500 value. After an interview,
Burke’s application for benefits was denied as being outside
the income guidelines.
Burke then submitted a second application in August 2010.
She again listed herself, Stephen, and her children as members
of her household. On this application, Burke listed no workers’
compensation income. However, she had recently won a 2010
Dodge Caliber which she reported as worth $10,000 with no
money owed. She also made changes to the values of the other
vehicles listed. In particular, Burke now listed the Chevy Tahoe
as worth only $1,000 rather than her previous estimate of
$4,500, and stated that she owed $380 on it, rather than $0 in
her previous application. Burke’s application for benefits was
again denied as being outside the income guidelines.
Burke then submitted a third application about a week
later, in September 2010. Burke again listed that Stephen
was a member of her household and not receiving work-
ers’ compensation benefits. On this application, Burke listed
her new Dodge Caliber as being worth $11,000 rather than
$10,000. She listed the Chevy Tahoe as worth $7,100 rather
than $1,000, but also stated that she owed $11,000 on it rather
than the $380 she had stated on the previous application. In
each of these applications, Burke also listed a $1,647 monthly
mortgage payment as shared by herself and Stephen. Burke
was approved for SNAP benefits of $1,202 per month after her
third application.
In her December 2010 and December 2011 interim reports,
Burke reported no changes to her household members or
income. She continued receiving $1,202 per month over
this time period. In her June 2012 reapplication, Burke
reported that Stephen had moved out of the household. She
also reported monthly mortgage expenses of only $500 and
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Decisions of the Nebraska Court of A ppeals
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STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
explained that the rest of the mortgage expenses were still
paid by Stephen. After this application, Burke’s SNAP ben-
efits were reduced to $957 per month.
When an investigator contacted Burke in February 2013
about the variance in her applications, she submitted a writ-
ten statement that Stephen “resides [with] his mother [but]
comes & goes [at] the house, as he is an active part in raising
the kids.”
Stephen received weekly workers’ compensation benefits
during the entire period from June 2010 through August 2011.
He received a letter in August 2010 that his permanent partial
disability benefits had been paid in full. However, he contin-
ued receiving temporary total disability workers’ compensation
payments after the date of that letter and until January 2013.
If Burke had listed Stephen’s workers’ compensation
income, the family would have been ineligible for SNAP
benefits in 2010 and 2011. Burke testified at trial that she had
seen Stephen’s August 2010 letter about his permanent par-
tial disability benefits ending and had believed that all of his
workers’ compensation benefits ended.
Burke also testified that between July 2009 and January
2013, Stephen lived in her home for only 6 to 8 weeks. She
testified that he was in the home when she submitted all three
of her 2010 applications in June, August, and September. She
testified that he was not in the household during her January
2011 interim application when she reported no changes, but
that she thought she had told a caseworker prior to that time
that he was no longer in the home and that she was therefore
accurate in reporting no changes. However, there was no
record of her telling her caseworker that Stephen had moved
out. Burke testified that Stephen was in her home in July
2011 when she made another application to the Department
of Health and Human Services reporting him as a house-
hold member, but that he moved out again shortly thereafter.
She reported “NO CHANGES” in a December 2011 interim
report. Burke did not explain why she reported no changes to
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
household members in December 2011 despite her assertion
that Stephen was not then in the home. In June 2012, Burke
first reported that Stephen was no longer a household member.
Because SNAP benefits are based upon the number of people
in the house as well as the household income, listing him as
a household member without income increased benefits from
September 2010 through June 2012 by approximately $150
per month.
Burke testified that Stephen was always responsible for
the couple’s mortgage payment, but that she has nothing to
do with his finances. She testified that she never intentionally
misled anyone.
After the jury found Burke guilty of wrongfully obtaining
$6,370 of public assistance, the district court sentenced her to
2 years’ probation and restitution.
ASSIGNMENTS OF ERROR
Burke assigns, restated, that the district court erred in fail-
ing to (1) dismiss the matter due to a judicial admission; (2)
sustain Burke’s motion to dismiss, thus allowing the case to go
to the jury with insufficient evidence; (3) properly instruct the
jury as to the definition of “willful”; and (4) properly instruct
the jury that the amount of pecuniary loss must be determined
beyond a reasonable doubt.
STANDARD OF REVIEW
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 appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact. State v. Escamilla, 291 Neb. 181,
864 N.W.2d 376 (2015). 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 rea-
sonable doubt. Id.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached
by the court below. State v. Molina, 271 Neb. 488, 713 N.W.2d
412 (2006). Whether jury instructions are correct is a question
of law, which an appellate court resolves independently. State
v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
Consideration of plain error occurs at the discretion of an
appellate court. State v. Archie, 273 Neb. 612, 733 N.W.2d 513
(2007). Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process. State v. Magallanes,
284 Neb. 871, 824 N.W.2d 696 (2012).
ANALYSIS
Judicial Admission.
Burke first assigns that the district court erred in failing to
dismiss the case after she presented evidence that the State
made an alleged judicial admission that Burke’s reporting
errors were inadvertent. We note that the State argues that this
issue was not properly preserved for appellate review because
counsel did not use the language “judicial admission” in the
hearing on its plea abatement motion below. Assuming without
deciding that this issue was properly preserved, we find that it
is substantively without merit because the State did not make a
judicial admission as to Burke’s intent in this case.
[1,2] A judicial admission is “‘a formal act done in the course
of judicial proceedings.’” State v. Canady, 263 Neb. 552, 560,
641 N.W.2d 43, 51 (2002). It may substitute for evidence by
conceding for the purpose of litigation that the proposition of
fact alleged by an opponent is true. State v. Canady, supra.
Judicial admissions must be deliberate, clear, and unequivocal,
and they do not extend beyond the intent of the admission as
disclosed by its context. See Robison v. Madsen, 246 Neb. 22,
516 N.W.2d 594 (1994).
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Decisions of the Nebraska Court of A ppeals
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STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
[3,4] As an initial matter, judicial admissions must occur
within judicial proceedings and occur within the case being
tried. See Nichols Media Consultants v. Ken Morehead Inv.
Co., 1 Neb. Ct. App. 220, 491 N.W.2d 368 (1992). Burke submits
evidence that the State pursued recoupment of its overissuance
of benefits to her as an “Inadvertent Household Error” rather
than as an “Intentional Program Violation” in a separate admin-
istrative proceeding. However, administrative proceedings are
not judicial and are without judicial effect. See State ex rel.
Stenberg v. Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995).
Thus, any admissions made by the Department of Health and
Human Services in the administrative proceeding would not be
judicial admissions. The trial court did not err in refusing to
dismiss the criminal case on the basis of a statement made by
the department in the administrative hearing.
Directed Verdict and Sufficiency of Evidence.
[5] Burke next assigns that the district court erred in over-
ruling her motion for directed verdict at the close of the State’s
case and in allowing the case to go to the jury with insufficient
evidence. Burke has waived error in relation to the ruling on a
directed verdict by presenting evidence after her motion. State
v. Rodriguez, 6 Neb. Ct. App. 67, 80, 569 N.W.2d 686, 695 (1997)
(“where a defendant makes a motion for a directed verdict at
the end of the State’s case, whether ruled upon or not, and
the defendant thereafter presents evidence, the defendant has
waived any error in connection with the motion for directed
verdict made at the end of the State’s case”).
However, Burke may proceed on her insufficiency of the
evidence argument. She argues in particular that the State did
not submit sufficient evidence that her conduct was intentional.
She also argues that the State failed to establish a causal con-
nection between any false statements and her provision of
benefits. Burke additionally contends that Neb. Rev. Stat.
§ 68-1017 (Cum. Supp. 2014) requires the State to show that
she obtained her SNAP benefits for her use and not for her
children. Finally, Burke argues that there was insufficient
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
evidence to support the jury’s finding that she wrongfully
obtained over $500 in benefits.
In reviewing an argument that the evidence was insufficient
to support a conviction, 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 rea-
sonable doubt. State v. Escamilla, 291 Neb. 181, 864 N.W.2d
376 (2015). We begin with Burke’s argument that there was
insufficient evidence of her intent.
[6,7] When an element of a crime involves existence of
a defendant’s mental process or other state of mind of an
accused, such elements involve a question of fact and may be
proved by circumstantial evidence. State v. Kennedy, 239 Neb.
460, 476 N.W.2d 810 (1991). Intent may be inferred from the
words and acts of the defendant and the circumstances sur-
rounding her conduct. Id.
We find sufficient circumstantial evidence on the record to
allow a rational trier of fact to find beyond a reasonable doubt
that Burke willfully made false statements to obtain SNAP
benefits or to obtain more SNAP benefits than she would
otherwise be entitled to receive. Here, the evidence estab-
lishes that Burke reported her husband’s workers’ compensa-
tion income in one application but then denied this income in
two separate applications weeks later after her first application
was denied because her household had too high a level of
income. Stephen’s workers’ compensation income, if claimed,
would have caused her to continue to be ineligible for benefits.
Although Burke stated that she believed her husband’s work-
ers’ compensation benefits had ended, she also stated that he
was always responsible for the parties’ $1,647 mortgage pay-
ment and she attributed no other income or financial accounts
to him. A reasonable trier of fact could conclude from this
information that Burke knew Stephen had a source of income
and that in order to obtain benefits, she was not reporting it on
her SNAP application.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
Burke continued to report no changes in her application until
June 2012, when she reported that Stephen had moved out of
her home; she still did not claim his workers’ compensation
income at this time. From these actions, when viewed in the
light most favorable to the prosecution, a reasonable trier of
fact could determine beyond a reasonable doubt that Burke
intentionally omitted Stephen’s workers’ compensation income
in order to receive SNAP benefits to which she would not oth-
erwise be entitled. Alternatively, if the jury believed Burke’s
assertions that Stephen was not a member of the household for
almost all of the time period in question, it could find that she
intentionally omitted removing him from her applications in
order to continue receiving the approximately $150 per month
in additional benefits based upon an eight-member household
rather than a seven-member household.
Because the State submitted evidence that Burke received
$1,202 per month in SNAP benefits to which she would not
have been entitled if she had reported Stephen’s workers’
compensation income, sufficient evidence on the record would
allow a finder of fact to find beyond a reasonable doubt that
the amount of pecuniary loss was over $500. Alternatively,
if the jury accepted that Stephen was not a member of the
household during the relevant time period, the State submitted
evidence that Burke would have been overpaid by approxi-
mately $150 per month due to her statement that Stephen was
a member of the household. A rational trier of fact could con-
clude beyond a reasonable doubt from this evidence that over
the time period from September 2010 through June 2012, this
type of false reporting would also have resulted in more than
$500 in pecuniary loss.
[8] Finally, we disagree with Burke’s assertion that § 68-1017
requires the State to show that Burke obtained SNAP benefits
for herself rather than for her children. Section 68-1017 pro-
vides that a person commits an offense when she, by means
of a willfully false statement or representation, “obtains or
attempts to obtain . . . any [SNAP] benefit or electronic benefit
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STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
card, or any payment to which such individual is not entitled,
or a larger payment than to which he or she is entitled.” This
statute does not include a requirement that the benefits be
obtained for one’s own use. Because Burke obtained the ben-
efits at issue in this case, it is immaterial whether she used
them for herself, for her children, or both.
For these reasons, the evidence on the record is sufficient
to uphold the conviction and this assignment of error is with-
out merit.
Jury Instruction on Definition of “Willful.”
[9,10] Burke next assigns that the district court erred in
rejecting her proposed jury instruction on the definition of
“willful.” Whether jury instructions are correct is a question
of law, which an appellate court resolves independently of
the lower court’s decision. State v. Draper, 289 Neb. 777,
857 N.W.2d 334 (2015). To establish reversible error from a
court’s refusal to give a requested instruction, an appellant has
the burden to show that (1) the tendered instruction is a cor-
rect statement of the law, (2) the tendered instruction is war-
ranted by the evidence, and (3) the appellant was prejudiced
by the court’s refusal to give the tendered instruction. State v.
Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
Burke’s proposed jury instruction stated that “willfully
means intentionally or purposefully and not accidentally or
inadvertently.” The district court instead elected the pattern
jury instruction, which states that “‘[w]illfully’ means inten-
tionally or purposely, and not accidentally or involuntarily.”
Therefore, the only difference between the two instructions is
Burke’s substitution of the word “inadvertently” for the word
“involuntarily.” Although the pattern instruction omits the
word “inadvertently,” Burke cannot show that she was preju-
diced by the court’s adoption of the pattern instruction because
“accidentally” is included in the pattern instruction and is
synonymous with “inadvertently.” Black’s Law Dictionary 877
(10th ed. 2014) defines “inadvertence” as follows: “n. (15c)
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Decisions of the Nebraska Court of A ppeals
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STATE v. BURKE
Cite as 23 Neb. Ct. App. 750
An accidental oversight; a result of carelessness.” Burke’s
proposed instruction also omits the word “involuntarily,” but
we find nothing confusing in the word’s exclusion. Because
there is no substantive difference between the instructions in
the context of this case, Burke cannot show prejudice. This
assignment of error is without merit.
Jury Instruction on Pecuniary Loss.
Burke finally assigns that the district court committed plain
error in not properly instructing the jury that the amount of
pecuniary loss must be found beyond a reasonable doubt. This
assignment of error is based upon State v. Esch, 290 Neb. 88,
858 N.W.2d 219 (2015), in which we remanded a conviction
of criminal mischief for a determination of the amount of
loss beyond a reasonable doubt. In that case, the jury instruc-
tion stated, “‘If you find the State has proven the elements of
Criminal Mischief beyond a reasonable doubt, you must also
determine what, if any, pecuniary loss was suffered.’” Id. at 90,
858 N.W.2d at 221. The instruction did not specify the degree
of certainty required for ascertaining the amount of pecuni-
ary loss.
Here, however, the jury instruction did properly instruct
the jury that it needed to find the amount of pecuniary loss
beyond a reasonable doubt. Jury instruction No. 7 provided
in relevant part: “The material elements which the State must
prove by evidence beyond a reasonable doubt in order to con-
vict the Defendant of the crime charged are . . . (5) [t]he value
of the property or payment which the Defendant obtained or
attempted to obtain.” Therefore, we find no error in the district
court’s instruction.
CONCLUSION
After our review of the record, we find no error by the dis-
trict court. Accordingly, we affirm its judgment.
A ffirmed.