Whitaker v. Whitaker ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
WHITAKER V. WHITAKER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
JEFFREY WHITAKER, APPELLEE,
V.
GREGORY WHITAKER, APPELLANT.
Filed February 13, 2018. No. A-17-582.
Appeal from the District Court for Hall County: TERESA K. LUTHER, Judge. Affirmed.
On brief, Kevin K. Knake, Johnson Law Office, L.L.C., for appellant.
Marvin L. Andersen, Bradley Law Office, P.C., for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Gregory Whitaker appeals the entry of a harassment protection order entered by the district
court for Hall County in favor of his brother, Jeffrey Whitaker. Because we find that the evidence
was sufficient to support entry of the harassment protection order, we affirm.
BACKGROUND
On April 27, 2017, Jeffrey filed a form petition and affidavit to obtain a harassment
protection order against Gregory pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2016). Jeffrey
requested relief not only for himself, but also for his wife and daughter. In his affidavit in support
of the petition, Jeffrey made the following statements: He and Gregory are brothers. Their father
died in November 2016 and Jeffrey is the personal representative of the estate. Gregory had been
living in his father’s home with him until the father moved into a nursing home about a year before
he died. Gregory continued living in the father’s home after the father moved out and continued to
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live at the residence after the father died. The will of the father provides that the residence and the
surrounding farm land should be sold and the proceeds distributed between Jeffrey, Gregory and
their sister. As personal representative, Jeffrey had offered to sell Gregory the residence but he
refused. Jeffrey decided his only option was to forcibly remove Gregory from the property and
had him served with a notice to quit and filed a complaint for forcible entry and detainer. At the
time of Jeffrey’s affidavit, a trial on that action was scheduled for May 5, 2017.
The affidavit further stated Gregory’s behavior has always been erratic and abusive and
this behavior has greatly escalated following Jeffrey’s efforts to remove him from their father’s
residence. He stated that the erratic behavior was evidenced by text messages he had received on
April 13 and 20, 2017, copies of which were attached to the affidavit. Jeffrey stated that the
following statement in the April 13 text message was threatening to him and his family: “you and
your cunt wife just made the biggest fuckup of your hypocrit [sic] lives[,] hells coming and iam
[sic] coming with . . . leagaly [sic] or illeagally [sic] I don’t care were gonna [sic] settle up.”
On May 1, 2017, the district court entered an ex parte harassment protection order in favor
of Jeffrey. Gregory filed a request for a show cause hearing. At the hearing, Jeffrey testified that
Gregory had been harassing him through text messages and phone calls. Exhibit 1 was entered into
evidence which consisted of the two text messages Jeffrey referred to in his affidavit in support of
his petition to obtain a protection order. The text message Jeffrey received from Gregory on April
13 included the following: “You cop calling phony fucking prick you want a war I’ll give you one
. . . face me bitch see how you fare on that[,] you and your cunt wife just made the biggest fuckup
on your hypocrit [sic] lives[,] hells coming and iam [sic] coming with . . . leagaly [sic] or illeagally
[sic] I don’t care were gonna [sic] settle up.”
The April 20 text states:
You must have bumped your head to hire that cunt for an attorney[.] I hired an attorney
that will be getting a hold of you very soon[.] I’ve also had this place surveyed and split
into thirds and appraiser will be here this afternoon[.] [S]orry to disappoint you but iam
[sic] farming this at least this year so grow up big shot and deal with it[.]
Jeffrey testified that when he received the text message on April 13, 2017, he was
concerned and worried and he felt threatened. He also testified that he believed Gregory was
capable of carrying out such a threat. He also testified that the April 13 and 20 texts were consistent
with other conversations he had with Gregory. He testified that text conversations with Gregory
would sometimes start out being constructive but would escalate into threats and bullying tactics.
Jeffrey testified that Gregory’s behavior over the past year or so “kind of ebbs and flows
from relatively calm behavior . . . to when he becomes agitated. Then he is prone to outbursts and
threats of violence.” Jeffrey also testified that Gregory has always been a highly volatile person,
with violent outbursts and a temper. He testified that Gregory’s behavior has escalated in the past
6 months to a year, following Jeffrey’s efforts to remove him from their father’s residence. His
opinion was based on the threatening texts he had received. He also testified that he believed
Gregory could be violent and he feared violence on the part of Gregory.
On cross-examination, Jeffrey was asked what specific language in the texts was
threatening. He testified that the threatening language included Gregory’s statement that he was
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going to give Jeffrey a war, along with the statement “leagaly [sic] or illeagally [sic] I don’t care
were gonna [sic] settle up.”
On redirect examination, Jeffrey testified that additional language in the April 13 text was
threatening, specifically: “face me bitch see how you fare on that;” “you and your cunt wife just
made the biggest fuckup of your hypocrite lives[,] hells coming and iam [sic] coming with.”
Jeffrey testified that his petition asked for a protection order for himself, as well as for his
wife and daughter. He stated that he did so because his wife was mentioned in the text message
and he started to “have concern for [his] daughter.” He testified that he did not want Gregory to
have any contact with his family.
At the end of Jeffrey’s testimony, exhibit 2, the petition and affidavit to obtain harassment
protection order filed by Jeffrey, was entered into evidence over Gregory’s objection. The court
also allowed exhibit 3, a search warrant for the property where Gregory resided, into evidence over
Gregory’s objection. The accompanying affidavit for search warrant was not admitted into
evidence. The search warrant was referenced in and attached to Jeffrey’s affidavit.
Following the hearing, the trial court entered an order affirming the harassment protection
order issued on May 1, 2017, making it effective for 1 year.
ASSIGNMENTS OF ERROR
Restated, Gregory assigns that the trial court erred in (1) admitting exhibit 2, Jeffrey’s
affidavit in support of the harassment protection order, and exhibit 3, a search warrant for the
property where Gregory was residing, into evidence, (2) finding there was sufficient evidence to
justify the issuance of a harassment protection order, and (3) entering the harassment protection
order on the basis of Jeffrey’s concern regarding his wife and daughter.
STANDARD OF REVIEW
A protection order is analogous to an injunction. Glantz v. Daniel, 21 Neb. Ct. App. 89, 837
N.W.2d 563 (2013). Accordingly, the grant or denial of a protection order is reviewed de novo on
the record. Id.
ANALYSIS
Admission of Exhibits 2 and 3.
Gregory first assigns that the trial court erred in admitting exhibits 2 and 3 into evidence.
We first address the admission of exhibit 2, the petition and affidavit to obtain harassment
protection order. Gregory argued at the hearing that exhibit 2 should not be admitted into evidence
because it was irrelevant and contained hearsay statements. At a show cause hearing in protection
order proceedings, a prima facie case may be established by a form petition and affidavit, which
has been properly admitted into evidence. Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426
(2010). The petition and affidavit are routinely admitted into evidence when offered. In fact, this
court has reminded parties of the importance of formally offering into evidence the petition and
affidavit filed in a protection order case. See, e.g., Sherman v. Sherman, 18 Neb. Ct. App. 342, 781
N.W.2d 615 (2010).
The petition and affidavit were clearly relevant, as the show cause hearing was based on
the allegations contained within them. In regard to hearsay, Jeffrey was the one who filed the
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petition and the affidavit was his own. He was competent to testify to the contents of exhibit 2.
Even if exhibit 2 did contain hearsay, any error committed by the trial court in admitting the
statements into evidence was harmless. Jeffrey testified at the show cause hearing concerning the
threatening behavior by Gregory. This testimony was direct evidence of the allegations contained
in the petition and affidavit. Jeffrey was also present for cross-examination. Accordingly, even if
the trial court erred in admitting into evidence any hearsay statements contained in exhibit 2, such
error was cured through Jeffrey’s testimony. Erroneous admission of evidence is harmless error
and does not require reversal if the evidence is cumulative and other relevant evidence, properly
admitted, supports the finding by the trier of fact. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d
282 (2007). We find no error in the court’s decision to admit exhibit 2 into evidence.
In regard to exhibit 3, the search warrant, even if we assume without deciding that it should
not have been admitted into evidence, there was sufficient evidence without it to conclude that the
harassment protection order should be extended for 1 year. Accordingly, any error in its admission
was harmless error. Gregory’s first assignment of error is without merit.
Sufficiency of Evidence.
Gregory next assigns that the evidence was insufficient to justify the issuance of a harassment
protection order. The harassment protection order in this case was entered on the basis of
§ 28-311.09, the purpose and terms of which are contained in Neb. Rev. Stat. § 28-311.02 (Reissue
2016). Section 28-311.02 provides in relevant part:
(1) It is the intent of the Legislature to enact laws dealing with stalking offenses
which will protect victims from being willfully harassed, intentionally terrified, threatened,
or intimidated by individuals who intentionally follow, detain, stalk, or harass them or
impose any restraint on their personal liberty and which will not prohibit constitutionally
protected activities.
(2) For purposes of sections 28-311.02 to 28-311.05, 28-311.09, and 28-311.10:
(a) Harass means to engage in a knowing and willful course of conduct directed at
a specific person which seriously terrifies, threatens, or intimidates the person and which
serves no legitimate purpose.
In analyzing § 28-311.02, the Nebraska Supreme Court has concluded that Nebraska’s
stalking and harassment statutes are given an objective construction and that the victim’s
experience resulting from the perpetrator’s conduct should be assessed on an objective basis. In re
Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007). Thus, the inquiry is whether a
reasonable person would be seriously terrified, threatened, or intimidated by the perpetrator’s
conduct. Id.
Jeffrey testified that he felt threatened by Gregory’s conduct. He testified that the
threatening language in the April 13 text message included Gregory’s statement that he was going
to give Jeffrey a war, along with the statement “leagaly [sic] or illeagally [sic] I don’t care were
gonna [sic] settle up.” Jeffrey also testified that the following language was threatening: “face me
bitch see how you fare on that;” “you and your cunt wife just made the biggest fuckup of your
hypocrite lives[,] hells coming and iam [sic] coming with.” Gregory’s statements in his text
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messages threatened and intimidated Jeffrey while serving no “legitimate purpose,” as described
in § 28-311.02(2)(a).
Jeffrey testified that the April 13 and 20 text messages were consistent with other text
conversations that he had with Gregory. He stated that conversations would sometimes start out
constructive and then escalate into threats and bullying tactics.
Jeffrey also testified that Gregory’s behavior over the past year or so “kind of ebbs and
flows from relatively calm behavior . . . to when he becomes agitated. Then he is prone to outbursts
and threats of violence.” He further testified that Gregory has always been a highly volatile person,
with violent outbursts and a temper. Gregory’s behavior had escalated following Jeffrey’s efforts
to remove him from their father’s residence. Jeffrey also believed that Gregory could be violent
and he feared violence on the part of Gregory.
We conclude that a reasonable person would be seriously terrified, threatened, or
intimidated by Gregory’s conduct. We note that Gregory’s conduct, which is of concern in this
case, is not confined to just two text messages. Rather, those messages were the culmination of
conduct which transpired over several months and included threats and intimidation throughout.
Accordingly, the evidence was sufficient to justify the issuance of a harassment protection order
against Gregory and in favor of Jeffrey, and the district court did not err in extending the protection
order for 1 year.
Gregory also assigns that the trial court erred in entering the harassment protection order
on the basis of Jeffrey’s concern regarding his wife and daughter. He claims there was no evidence
showing that either of them was directly involved or aware of the text messages. However, there
is no indication that the court granted the protection order based on Jeffrey’s testimony that he did
not want Gregory having any contact with his family. Further, the harassment protection order was
only entered in favor of Jeffrey, not his wife or daughter. Accordingly, this assignment of error is
without merit.
CONCLUSION
After our de novo review, we find the evidence was sufficient to support entry of the
harassment protection order.
AFFIRMED.
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