State v. Rakosnik ( 2014 )

Decisions of the Nebraska Court of Appeals
194 22 NEBRASKA APPELLATE REPORTS
(d) Conclusion on Move
Having conducted a thorough review of the record in this
case, I conclude Ember did not show that she has a legitimate
reason to move Lillian to New York or that such a move is in
Lillian’s best interests. This case presents yet another difficult
and unusual situation in the removal jurisprudence, which is
the reason that I give deference to the trial judge’s determi-
nation. See Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655
(2014). I find that the district court’s conclusion was not an
abuse of discretion.
IV. REMAINING ASSIGNED ERRORS
I concur with the majority opinion with respect to removal
of the visitation restriction on Lillian’s maternal grandmother,
Chesley, and with regard to the determination of child support.
As such, I would affirm the decision of the district court in
its entirety.
State of Nebraska, appellee, v.
Lewis D. Rakosnik, appellant.
___ N.W.2d ___
Filed July 15, 2014. No. A-13-663.
1. Jury Instructions: Judgments: Appeal and Error. An assigned error of incor-
rect jury instructions is a question of law, and an appellate court has an obli-
gation to reach an independent conclusion irrespective of the decision of the
court below.
2. 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 mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
3. Jury Instructions: Proof: Appeal and Error. 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 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.
4. Trial: Testimony: Appeal and Error. The scope of cross-examination of a wit-
ness rests largely in the discretion of the trial court, and its ruling will be upheld
on appeal unless there is an abuse of discretion.
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 195
Cite as 22 Neb. Ct. App. 194
5. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard 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.
6. ____: ____. On a challenge to the sufficiency of the evidence, the relevant ques-
tion 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.
7. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
8. Jury Instructions: Appeal and Error. It is not error for a trial court to refuse
to give a defendant’s requested instruction where the substance of the requested
instruction was covered in the instructions given.
9. Appeal and Error. An objection, based on a specific ground and properly over-
ruled, does not preserve a question for appellate review on any other ground.
10. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a
different ground for his objection than was offered at trial.
11. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal
case, harmless error exists when there is some incorrect conduct by the trial court
which, on review of the entire record, did not materially influence the jury in
reaching a verdict adverse to a substantial right of the defendant.
Appeal from the District Court for Pawnee County: Daniel
E. Bryan, Jr., Judge. Affirmed.
John S. Berry, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Inbody, Chief Judge, and Moore and Pirtle, Judges.
Pirtle, Judge.
INTRODUCTION
Lewis D. Rakosnik appeals his convictions from the district
court for Pawnee County where a jury found him guilty of 39
counts of knowing and intentional abuse of a vulnerable adult,
attempted theft by deception, and attempted knowing and
intentional abuse of a vulnerable adult. For the reasons that
follow, we affirm.
Decisions of the Nebraska Court of Appeals
196 22 NEBRASKA APPELLATE REPORTS
BACKGROUND
Lewis is the nephew of Joseph M. Rakosnik (Mike). Lewis
began to care for Mike in early 2011 when Mike was already in
hospice care and his longtime partner, Evelyn Doeschot, could
no longer care for him alone. Prior to that time, Lewis was a
home health physical therapist for several years in Arizona, but
he had not worked in that field since 2009. In 2008, his mother
moved from Nebraska to Arizona to live with Lewis because
she was ill. In 2010, they returned to Wilber, Nebraska. After
his mother’s death, he received a call from Doeschot asking
him to help care for Mike and he moved into Mike’s house to
do so. During that time, Lewis obtained Mike’s power of attor-
ney and exercised control over Mike’s finances and effected
several financial and property transactions while acting under
Mike’s power of attorney.
Lewis was charged by information on April 16, 2012. Mike
died April 27. The State sought leave to file an amended
information on May 1, 2013, and the amended document
was filed the same day. The information alleged 39 counts of
knowing and intentional abuse of a vulnerable adult, attempted
theft by deception, and attempted knowing and intentional
abuse of a vulnerable adult. A jury trial took place on May 7
through 10.
Christina Hain, a registered nurse who provided home health
and hospice care for Mike, testified at trial. She stated that
she had over 20 years of experience, that she had the skills to
evaluate the mental and physical status of her patients, and that
such evaluations are done on each visit. Mike became Hain’s
patient in the home health area in 2010 and shifted to hospice
in February 2011. She saw Mike roughly twice per week, and
she talked to Mike, his family, and his caregivers about Mike’s
condition. She testified that Mike’s mental state varied with
each visit and that he was confused, sometimes to the point of
not remembering who his caregivers were, though they were
his longtime girlfriend, Doeschot, and his nephew, Lewis. Hain
reported Mike displayed some impaired decisionmaking and
was confused about new things happening in his life. Hain
reported that in April, May, and June 2011, Mike’s mental state
varied, but that he was consistently confused.
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 197
Cite as 22 Neb. Ct. App. 194
Trooper Cory Townsend, an investigator with the Nebraska
State Patrol, was assigned to investigate the complaints in this
case. He interviewed Mike on October 19, 2011, at Mike’s
residence. Lewis said that when he came to Nebraska, Mike
needed some help walking, but that Mike’s condition declined
quickly in the fall of 2010. Lewis told Townsend that Mike
had a CT scan showing some brain shrinkage, which he later
described as dementia. Lewis told Townsend that he initially
lived in his parents’ house in Wilber and visited Mike and
Doeschot every 3 days or so. In February 2011, when Mike
entered hospice care, Lewis moved into Mike’s home.
Lewis told Townsend that he became the primary caregiver
and that soon after, he acquired Mike’s powers of attorney,
both medically and “overall.” Lewis said Mike’s hospice care
told him that Mike needed a medical power of attorney, so
he contacted Mike’s attorney, Loren Joe Stehlik, to draft both
powers of attorney. The documents were signed in mid-March
at Mike’s home. Lewis told Townsend that it took a while for
Mike to understand he was signing documents granting Lewis
his powers of attorney but that Mike eventually said, “I guess
that would be okay.” Lewis testified that he had no doubt
Mike knew what he was doing when he signed the powers
of attorney.
Carolyn Yoble, an employee of a branch of the Table Rock
Bank, testified that she is a notary public and was asked to
notarize the power of attorney created for Mike. She testified
that she was asked to go to Mike’s house to notarize a docu-
ment because it was hard for Mike to get around. When she
arrived, she observed that Mike was eating. She said that he
was having trouble keeping food on the fork and getting the
fork into his mouth and that Doeschot was helping him with
the meal. Yoble said Mike was quiet and seemed tired, and
needed help signing the document, so Doeschot supported his
hand while he signed. Doeschot testified that she was present,
but did not know if Mike knew what he was signing.
About 10 days after the power of attorney was signed and
notarized, Lewis came into the bank and asked to change the
payable on death provision on multiple certificates of deposit
(CD’s). The CD’s were in Mike’s safety deposit box and were
Decisions of the Nebraska Court of Appeals
198 22 NEBRASKA APPELLATE REPORTS
payable on death to Doeschot. Yoble said she was not in the
bank when Lewis arrived, but she came in during the process
and asked the teller not to change the provisions on the CD’s
until she knew the bank had the authority to make the change.
After speaking to Mike’s attorney, Stehlik, Yoble again told
the teller not to make any changes. Lewis left with two CD’s
unchanged, but the change had already been made on two
other CD’s.
The next day, Lewis received a telephone call from the bank
telling him to return the CD’s to the bank. He was told the
CD’s would need to be reverted to their original form because
the bank’s attorney stated the payable on death payee could
not be changed from Doeschot to himself. Lewis did not return
them, but, rather, he took them to a different branch of the bank
in August 2011 and asked that they be cashed. The money was
deposited into Mike’s account. Lewis later told Townsend that
in March 2011, he used the power of attorney to change the
payee on two of the CD’s from Doeschot to himself and his
three siblings.
Townsend asked Lewis about his assets, and Lewis said
he did not have any. Lewis later recalled that he had a house
in Arizona, a pickup truck, and an ownership interest in his
parents’ property in Wilber. He reported that he “ran out of
money” in April 2011. He also reported that his physical
therapy license expired sometime in 2010, but that he was eli-
gible to renew it anytime within 3 years. Lewis reported that
he was not eligible for unemployment and had a number of
expenses, including gas, electric bills for the Arizona property,
utilities for the Wilber property, taxes, insurance, et cetera.
He also indicated he went to a casino approximately one to
three times per week. He told Townsend he paid his utilities
and other expenses for his houses in Arizona and Wilber from
Mike’s account. He also used Mike’s account to pay his bills,
and when asked whether he and Mike discussed that, Lewis
said “not really.”
Lewis also told Townsend about an “Edward Jones account”
worth about $97,000. Lewis asked the broker how the money
could be kept from going through probate and was told that
there could be no beneficiaries assigned to the account, but
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 199
Cite as 22 Neb. Ct. App. 194
that he could use his power of attorney to cash out the account.
The money was deposited into Mike’s account, and Lewis
wrote checks to several family members with that money.
Townsend testified that there were numerous and frequent
transfers from Mike’s account to Lewis’ account, but that they
were not scheduled transfers or for consistent amounts.
Townsend also testified that Lewis made real estate transfers
in Mike’s name. Lewis told Townsend that it was his under-
standing that Mike’s will granted Lewis and his siblings the
280 acres of land on which Mike’s home was situated. The
will contained a stipulation that the land could not be sold for
a generation, so Lewis and his siblings could not sell the land.
The will also stipulated that Doeschot would have the right
to stay in the house and have access to the property for the
remainder of her life, as long as she did not move out. Lewis
told Townsend that he asked an attorney to create a life estate
transferring ownership of the property from Mike to Lewis and
his three siblings, but allowing Mike rights and all privileges
and income from the land for his lifetime. The transfer Lewis
executed did not include any restrictions on the deed or any
provisions benefiting Doeschot.
When Townsend spoke with Mike in October 2011, he asked
to see Mike’s credit card and noted Mike had difficulty with
the task. Mike was given his wallet and had trouble locating
the card. He initially handed Townsend a check made out to
him for the sale of his truck. Mike could not accurately relate
what type of vehicle he sold. When Mike found the card, he
could not identify who the cardholder was, which bank issued
the card, or how long he had had the card.
When Townsend returned in January 2012, Mike could
not identify the relationship between himself and Lewis.
Mike told Townsend that Lewis was a hunter who had shown
up asking for permission to hunt and had then just moved
into the house. Townsend testified that he did not ask Mike
whether he authorized Lewis to spend his money, because
Mike could not find his credit card or tell him what car he
owned. Townsend was not confident that Mike could accu-
rately or intelligently tell him about his life estate, his hold-
ings, the contents of his bank account, or how he wanted
Decisions of the Nebraska Court of Appeals
200 22 NEBRASKA APPELLATE REPORTS
these items handled upon his death. He also testified that
Lewis’ name was not on Mike’s accounts and that there were
no payments to Lewis’ credit card accounts prior to the sign-
ing of the power of attorney.
Doeschot testified that she became involved with Mike in
1993 and that she had lived with Mike since 1999. She said
she moved out of Mike’s house in August 2011 because of dis-
agreements she had with Mike about the CD’s. She said Lewis
accused her of stealing from Mike and made other derogatory
remarks about her. When Mike was moved to a nursing home
in 2012, Doeschot resumed her relationship with Mike and vis-
ited him almost every day.
Lisa Hunzeker testified that she and her husband rented
farm ground from Mike and bought some land from him in
January 2011. She testified that she took a rent check to Mike
on July 1, gave it to Lewis, and told him what it was for.
Lewis asked Hunzeker if she would be interested in buying
the farm, and she told him that Mike and her husband had
discussed buying the rest of the farm when they bought the
first half. Mike had told Hunzeker that his nieces and nephews
would be given the farm in his will and that for a certain num-
ber of years, it was required to stay in the family. In August
2011, Hunzeker and her husband got a letter from Lewis with
an amendment to the contract for a land purchase from Mike.
The amendment stated that on Mike’s death, the payments for
the land would go to Lewis and his siblings.
Stehlik testified that he had known Mike all of his life and
that Mike had been a client since Stehlik started his practice.
He testified that neither Mike nor one of his brothers had
any children, but that their other brother was a father of four,
including Lewis. He testified that he knew Doeschot very well
and knew Mike lived with her for approximately 20 years. He
stated that he drafted Mike’s will in 2005 and helped Lewis to
prepare a power of attorney for Mike in February 2011. The
will gave Doeschot certain personal property and the use, pos-
session, and control of the house and premises for her natural
life. Mike left all of the real estate to his nieces and nephews,
with the proviso that the real estate not be sold or mortgaged
during their lifetimes.
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 201
Cite as 22 Neb. Ct. App. 194
Stehlik said Mike’s condition had declined significantly after
his visit in late January 2011: Mike was pale, he dozed off, and
he could not carry a conversation. He did not see Mike during
the periods between March to April or June to December 2011.
He testified that he did not have any basis to observe, evaluate,
or form any type of opinion on Mike’s mental state from June
through December 2011. He testified that by January 2012,
Mike was “the same old Mike.” Stehlik said that he believed
Mike’s condition was good enough to execute a new will on
March 1 and that he was sure Mike understood it.
Don Davis, an adult protective services worker, met Mike
and Lewis at Mike’s home on August 30, 2011. He performed a
“Goldfarb” assessment, which is a 10-question assessment used
to determine a person’s cognitive abilities, such as memory and
decisionmaking. Mike was unable to relate to Davis what the
date was. Instead, he remarked that it was hot and humid and
said they were not able to plant crops early this spring. When
asked his birth date, Mike replied that he had a birthday party
but could not remember when. Mike was not able to respond
with his address.
Davis saw Mike again on November 1, 2011. Mike was
asked about his family, and the only name Mike could remem-
ber was “Mike.” Mike remembered Doeschot as a hired girl
that worked on the farm or in the household. Davis asked
Mike about a photograph of his nieces and nephews, and Mike
replied that the photographs were of him, his father, and his
brothers. Mike was asked about his finances, and Mike said
that he had $1,000 left, but that Doeschot owed him $1,500
from a loan. Davis stated that on March 2, 2012, Mike was
unable to communicate audibly and Davis could not understand
what was said. Davis said Mike’s condition on March 2 was
the worst he had seen.
Lewis moved for a directed verdict at the close of the
State’s evidence on counts 1 through 33 and counts 36 through
39. The court dismissed any breach of fiduciary duty in
counts 38 and 39 of the information, but did not dismiss the
State’s case.
Lewis testified that there were times between February and
December 2011 when Mike seemed disoriented and confused,
Decisions of the Nebraska Court of Appeals
202 22 NEBRASKA APPELLATE REPORTS
and times when he seemed to know what was going on. Lewis
testified that he had an agreement with Mike to compensate
him for working in Mike’s home and that the agreement was
that Lewis could “use whatever [he] needed.” He testified that
he made distributions of Mike’s money because Mike was
in hospice care and his health was not good. Lewis talked
to Stehlik and another attorney about estate planning and
tax ramifications and then cashed in accounts and distributed
funds prior to Mike’s death. Lewis said he was never worried
that Mike would run out of money or that there would not be
enough money to pay for Mike’s care. Lewis stated that he
did not believe there was anything wrong with the way he
used Mike’s money and that there was no limit on how much
of Mike’s money he was allowed to spend. He testified that
he believed he was acting in Mike’s best interests using his
power of attorney and that spending money at the casino was
in Mike’s best interests.
Lewis admitted that he used Mike’s money to pay his
credit card bills. Lewis admitted to changing the benefici­
aries on several CD’s Mike held to benefit his siblings and
himself. He admitted to withdrawing all of the funds from
the Edward Jones account. Lewis testified that he used his
personal credit card at the casino and that he also charged
some of Mike’s expenses on his personal card. He admitted to
using Mike’s checking account to pay off his credit cards and
to write checks to his siblings. He admitted to using Mike’s
account to pay his property taxes in Arizona and bills for his
mother’s home in Wilber. He admitted that he created a war-
ranty deed transferring an interest in Mike’s land to himself
and to his siblings. Lewis admitted that he took a rent check
from Hunzeker and her husband and distributed it to himself
and his siblings, even though Mike was still alive, the land
was still titled to Mike, and the lease did not involve Lewis
or his siblings.
Lewis’ twin sister testified that she visited Mike several
times while Lewis was caring for him. She said that “for the
most part,” Mike was very alert and oriented, but that he had
periods of confusion. She identified three checks written on
July 11, 2011, to herself and to her husband for their shares of
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 203
Cite as 22 Neb. Ct. App. 194
Mike’s Edward Jones accounts and her share of Mike’s land
rental. She testified that she was a party to a lawsuit contesting
the version of Mike’s will dated March 2012. She stated her
position in that case was that Mike did not have the capacity
to sign his will in March 2012. She said she had no concerns
about the legitimacy of the checks written by Lewis, because
Mike gave Lewis his power of attorney.
Dr. Richard Jackson was Mike’s doctor for about 30 years,
and he testified that he met with Mike monthly in 2011. On
cross-examination, Jackson said he did not conduct any evalu-
ations of Mike’s mental state and did not make any assessment
about whether Mike could live independently. On redirect,
Jackson said he did not feel the need to perform a mental
evaluation based on his observations. On recross-examination,
Jackson was asked if he prescribed medication for Mike that
would be consistent with something he would prescribe for
someone with mental problems. Lewis objected that the ques-
tion was outside of the scope of direct examination, and the
objection was overruled as long as it was within the time
period Jackson indicated he saw Mike. Jackson said he pre-
scribed Seroquel, which is classified as an antipsychotic medi-
cation, for Mike in September 2011.
The jury found Lewis was guilty of all counts set forth in
the amended information. Lewis’ motion for new trial was
denied, and he was sentenced to a total of no more than 5
years in prison, with his sentences to run concurrently. Lewis
timely appeals.
ASSIGNMENTS OF ERROR
Lewis asserts the district court erred in giving the jury
misleading, confusing, and incomplete instructions. He also
asserts the trial court abused its discretion by allowing the
State to go beyond the scope of direct examination in its cross-­
examination of Jackson. Lewis asserts the evidence was insuf-
ficient to prove his guilt beyond a reasonable doubt.
STANDARD OF REVIEW
[1] An assigned error of incorrect jury instructions is a
question of law, and an appellate court has an obligation to
Decisions of the Nebraska Court of Appeals
204 22 NEBRASKA APPELLATE REPORTS
reach an independent conclusion irrespective of the decision of
the court below. See State v. Watt, 285 Neb. 647, 832 N.W.2d
459 (2013).
[2] All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating
reversal. Id.
[3] 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 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. State v. Podrazo, 21
Neb. Ct. App. 489, 840 N.W.2d 898 (2013).
[4] The scope of cross-examination of a witness rests largely
in the discretion of the trial court, and its ruling will be upheld
on appeal unless there is an abuse of discretion. State v. Poe,
276 Neb. 258, 754 N.W.2d 393 (2008).
[5,6] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combi-
nation thereof, the standard is the same: An appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. State v. Wiedeman, 286 Neb. 193,
835 N.W.2d 698 (2013). On a challenge to the sufficiency of
the evidence, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See id.
ANALYSIS
Jury Instructions.
[7] Lewis asserts the district court erred in giving the
jury misleading, confusing, and incomplete instructions. In
an appeal based on a claim of an erroneous jury instruction,
the appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 205
Cite as 22 Neb. Ct. App. 194
substantial right of the appellant. State v. Huff, 283 Neb. 78,
802 N.W.2d 77 (2011).
[8] 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 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. State v. Podrazo, supra. It is not
error for a trial court to refuse to give a defendant’s requested
instruction where the substance of the requested instruction
was covered in the instructions given. State v. Gales, 269 Neb.
443, 694 N.W.2d 124 (2005).
Lewis was charged with the crime of knowing and inten-
tional abuse of a vulnerable adult. Neb. Rev. Stat. § 28-386
(Reissue 2008) states that a “person commits knowing and
intentional abuse of a vulnerable adult if he or she through
a knowing and intentional act causes or permits a vulnerable
adult to be . . . exploited.”
Lewis argues that the court erred in not including his
proposed instruction on the meaning of “vulnerable adult”
and that the need to find Mike fit that definition at the time
of the alleged exploitation. His proposed instruction stated,
“In order to find that [Lewis] exploited a vulnerable adult
you must find beyond a reasonable doubt the exploitation
occurred while the alleged victim was vulnerable.” He asserts
the court’s failure to give the instruction prejudiced Lewis
and misled the jury.
The evidence shows the district court declined to give the
instruction proposed by Lewis because it was a restatement of
instructions already prepared by the court to be given to the
jury. Jury instruction No. 5 included definitions of “vulnerable
adult” as defined in Neb. Rev. Stat. § 28-371 (Reissue 2008),
“exploitation” as defined in Neb. Rev. Stat. § 28-358 (Reissue
2008), and “substantial mental impairment” as defined in Neb.
Rev. Stat. § 28-369 (Reissue 2008). The jury instructions
described the offense using the language of the statutes, and
the Nebraska Supreme Court has previously held that it is
proper for the court to describe the offense in the language
of the statute. State v. Kass, 281 Neb. 892, 799 N.W.2d 680
 Decisions of the Nebraska Court of Appeals
206 22 NEBRASKA APPELLATE REPORTS
(2011). The definitions presented to the jury conformed to the
statutes and are presumptively correct.
Jury instruction No. 4 includes a recitation of the elements
of each crime, stating that the jury must find that on a par-
ticular date, at a particular location, Lewis knowingly and
intentionally caused or permitted a “vulnerable adult” to be
exploited, and the instruction set forth the particulars of the
transaction for each count. In light of this fact, we find Lewis’
assertion, that the jury instructions given did not require a find-
ing that Mike was a vulnerable adult at the time of the alleged
exploitation, is without merit. We find the jury instructions that
were given adequately and properly instructed the jury on the
elements and definitions of the crime and were not prejudicial
to Lewis.
Lewis asserts instructions Nos. 6 and 7 misled and confused
the jury as to what elements the State had to prove. He argues
that the instructions described elements of civil claims, not
elements of the crimes he was charged with, and that they did
not correctly state the law. The district court overruled Lewis’
objection to instructions Nos. 6 and 7, finding they did not
state that breach of fiduciary duty or undue influence were
crimes; rather, the instructions were definitional in nature, and
when read together with the remaining instructions, the instruc-
tions were not misleading as to the law.
The definition of exploitation in § 28-358 includes “the tak-
ing of property of a vulnerable adult by means of undue influ-
ence, breach of a fiduciary relationship,” et cetera. (Emphasis
supplied.) Thus, the definitions of “undue influence” and
“breach of fiduciary relationship” were given in instructions
Nos. 6 and 7 to assist the jury in determining whether a vulner-
able adult was exploited. Upon our review, we find instructions
Nos. 6 and 7, when read in light of all of the other instructions
given, were not misleading or confusing to the jury and did not
lead to prejudicial error. See State v. Watt, 285 Neb. 647, 832
N.W.2d 459 (2013).
Lewis also asserts jury instruction No. 6 was misleading
because it stated he could not profit from his duty as Mike’s
attorney in fact. He asserts that this instruction is contrary to
Nebraska law, allowing for reimbursement of expenses and
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 207
Cite as 22 Neb. Ct. App. 194
compensation for agents under a power of attorney, and that
it was incomplete without some reference to Neb. Rev. Stat.
§ 30-4012 (Cum. Supp. 2012).
[9,10] An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate
review on any other ground. State v. Valverde, 286 Neb. 280,
835 N.W.2d 732 (2013). On appeal, a defendant may not assert
a different ground for his objection than was offered at trial.
State v. Watt, supra.
Lewis’ counsel objected to instruction No. 6 during the
jury instruction conference, stating that “my concern is that it
would be confusing to the jury and possibly unfairly prejudi-
cial to [Lewis] because I’m concerned that breach of fiduciary
duty is not necessarily a crime.” There was no objection to the
instruction on the basis that it was incomplete, nor was there
any mention of § 30-4012, or whether it should apply. This
issue was raised for the first time on appeal to this court, and
therefore, we decline to address Lewis’ assignment of error
with regard to § 30-4012.
Scope of Cross-Examination.
Lewis further asserts the district court abused its discre-
tion in allowing the State to go beyond the scope of the direct
examination of Jackson in its recross-examination. Specifically,
he asserts the State should not have been allowed to question
Jackson regarding a medication prescribed to Mike because it
was outside of the timeframe covered by the direct examina-
tion. Lewis’ objection was overruled.
The scope of cross-examination of a witness rests largely in
the discretion of the trial court, and its ruling will be upheld on
appeal unless there is an abuse of discretion. State v. Poe, 276
Neb. 258, 754 N.W.2d 393 (2008).
The evidence shows that Lewis’ objection was to a line of
questioning by the State during recross-examination. The rule
of practice is that a party should not be permitted to cross-
examine a witness as to a matter foreign to the scope of his
direct examination. See In re Estate of Camin, 212 Neb. 490,
323 N.W.2d 827 (1982). See, also, Neb. Rev. Stat. § 27-611
(Reissue 2008). In such situations, a party is usually required
Decisions of the Nebraska Court of Appeals
208 22 NEBRASKA APPELLATE REPORTS
to call the witness as his own and thus present the evidence
material to the case. In re Estate of Camin, supra.
Although there is no specific rule as to the scope of
recross-examination, it stands to reason that if the scope of
the original cross-examination is limited to the original direct
examination, then the scope of recross-examination is lim-
ited to the scope of redirect examination. Certainly, this has
been the local custom or practice throughout most if not all
of the trial courts in the State of Nebraska. However, assum-
ing without deciding that this is the appropriate approach, we
conclude the court did not abuse its discretion in allowing the
question regarding medication. The record shows the defense
asked Jackson, on redirect examination, if he felt the need
to perform a mental evaluation on Mike, even though he did
not treat him for a mental health purpose. Then on recross-
examination, the State asked Jackson if he, in fact, had pre-
scribed medication consistent for someone with mental health
needs. Though Lewis objected that it was outside the scope
of direct examination, Jackson was permitted to answer that
he had prescribed Seroquel, which is classified as an antipsy-
chotic medication.
[11] Even if Lewis’ objection had been sustained, Jackson
was a witness endorsed by the State on the information. As
such, even if Jackson had not been allowed to answer the
question about medication on recross-examination, he could
have been recalled by the State as a rebuttal witness and
that information would have been permitted on the State’s
direct examination. Thus, Jackson’s testimony could have been
entered regardless, and the court’s decision to overrule, rather
than sustain, Lewis’ objection would amount to harmless error.
In a jury trial of a criminal case, harmless error exists when
there is some incorrect conduct by the trial court which, on
review of the entire record, did not materially influence the
jury in reaching a verdict adverse to a substantial right of the
defendant. See State v. McKinney, 273 Neb. 346, 273 N.W.2d
74 (2007).
We find the court did not abuse its discretion in overrul-
ing Lewis’ objection to the State’s recross-examination of
Jackson.
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 209
Cite as 22 Neb. Ct. App. 194
Sufficiency of Evidence.
Lewis asserts the evidence was insufficient to prove him
guilty of all counts. He asserts that the State did not prove
beyond a reasonable doubt Mike was a vulnerable adult and
that the State failed to show Mike had substantial mental or
functional impairment during the pertinent time period.
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. State v. Wiedeman, 286
Neb. 193, 835 N.W.2d 698 (2013).
Under the statutes, a vulnerable adult is a person with
substantial mental or functional impairment. See § 28-371.
Substantial mental impairment means a “substantial disorder of
thought, mood, perception, orientation, or memory that grossly
impairs judgment, behavior, or ability to live independently or
provide self-care as revealed by observation, diagnosis, inves-
tigation, or evaluation.” § 28-369. Multiple witnesses testified
that Mike was confused at various times in 2011 and 2012 and
that they questioned his ability to make decisions or understand
the documents he was asked to sign.
The evidence shows that Lewis moved into Mike’s home,
because Mike was in hospice care; Mike could no longer care
for himself; and Doeschot needed assistance because she could
no longer care for Mike on her own. Mike’s nurse testified
that Mike was consistently confused and that only the degree
of his confusion changed. There were days when he could
not tell her who his caregivers were, even though they were
Doeschot, with whom Mike had lived for many years, and
Lewis, his nephew.
Lewis himself told Townsend on October 19, 2011, that
Mike had a CT scan showing some brain shrinkage, which he
later described as dementia. Lewis also stated that he obtained
Mike’s power of attorney in March 2011 and disclosed that
he “ran out of money” in April 2011. The documentary evi-
dence shows significant amounts were drawn from Mike’s
bank accounts in March 2011 and the following months. The
evidence shows that Lewis paid bills for his mother’s house
in Wilber and his own house in Arizona from Mike’s accounts
and that Lewis spent large amounts at casinos. He changed
Decisions of the Nebraska Court of Appeals
210 22 NEBRASKA APPELLATE REPORTS
the beneficiaries on CD’s to his and his siblings’ names, then
cashed and distributed the funds to his family members using
Mike’s account. Witnesses testified that Mike intended his
land to remain in his family for one generation before it could
be sold. The new will, executed in March 2012, removed this
provision, as well as the provision allowing Doeschot a life
estate after Mike’s death.
Davis, an adult protective services worker, met with Lewis
and Mike on August 30, 2011, and performed a 10-question
mental examination of Mike. Mike could not relate his own
address or birth date. Davis visited Mike on other occasions
and found he was consistently confused. Davis asked Mike
about photographs of his nieces and nephews, and Mike said
the photographs depicted his father and his brothers. Davis also
testified that around the time Mike signed a new version of his
will, removing Doeschot as a beneficiary and removing restric-
tions regarding Lewis and his siblings’ use of his land, Mike
was in the worst mental condition Davis had seen him.
The evidence suggests Lewis did not use the power of attor-
ney to promote Mike’s best interests, but, rather, it was used to
ensure Lewis and his siblings would profit from Mike’s hold-
ings. The jury was tasked with deciding whether Mike was a
vulnerable adult as defined by the statute. The record shows
the jury determined that Mike was, in fact, a vulnerable adult
and that Lewis exploited Mike’s finances.
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. State v. Wiedeman, 286
Neb. 193, 835 N.W.2d 698 (2013). After viewing the evidence
in the light most favorable to the prosecution, we find any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. The evidence was suf-
ficient to support the conclusions reached by the jury, and we
find this argument is without merit.
CONCLUSION
We find the district court did not give the jury mislead-
ing, confusing, or incomplete jury instructions. We find the
district court did not abuse its discretion in overruling Lewis’
Decisions of the Nebraska Court of Appeals
STATE v. RAKOSNIK 211
Cite as 22 Neb. Ct. App. 194
objection to the scope of the State’s examination on recross-
examination. We also find any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.
Affirmed.