Prentice v. Steede , 28 Neb. Ct. App. 423 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
Harvey G. Prentice and Teresa S. Prentice,
appellees, v. Desire Steede, also known
as Desire Staples, appellant.
___ N.W.2d ___
Filed May 19, 2020. No. A-19-1014.
1. Protection Orders: Injunction: Appeal and Error. A protection order
is analogous to an injunction. Accordingly, the grant or denial of a pro-
tection order is reviewed de novo on the record.
2. Criminal Law: Statutes. Nebraska’s stalking and harassment statutes
are given an objective construction, and the victim’s experience result-
ing from the perpetrator’s conduct should be assessed on an objec-
tive basis.
3. Criminal Law: Judgments. Under Nebraska’s stalking and harassment
statutes, the inquiry is whether a reasonable victim would be seriously
terrified, threatened, or intimidated by the perpetrator’s conduct.
4. Pleadings: Trial: Evidence. A prima facie case may be established by
a form petition and affidavit, but the petition and affidavit cannot be
considered as evidence until offered and accepted at the trial as such.
5. Protection Orders: Proof. An ex parte order does not relieve the peti-
tioner of the burden to establish by a preponderance of the evidence the
truth of the facts supporting a protection order.
6. Protection Orders: Pleadings: Evidence. Neb. Rev. Stat. § 28-311.09
(Reissue 2016) was amended operative January 1, 2020, and now
provides that the petition and affidavit shall be deemed to have been
offered into evidence at any show cause hearing, and the petition and
affidavit shall be admitted into evidence unless specifically excluded by
the court.
7. Statutes: Time. Procedural amendments to statutes are ordinarily appli-
cable to pending cases, while substantive amendments are not.
8. Statutes: Words and Phrases. A substantive right is one which creates
a right or remedy that did not previously exist and which, but for the
creation of the substantive right, would not entitle one to recover. A
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
procedural amendment simply changes the method by which an already
existing right is exercised.
9. Statutes. A substantive law commonly creates duties, rights, and obli-
gations of a party, whereas a procedural law prescribes the means
and methods through and by which substantive laws are enforced and
applied.
10. Protection Orders: Pleadings: Evidence: Proof. The statutory amend-
ment to Neb. Rev. Stat. § 28-311.09 (Reissue 2016) affects the substance
of the claim because it changes the duty and obligation of a petitioner
to prove his or her claim by offering the petition and affidavit into
evidence, or otherwise testifying to the contents of such petition and
affidavit, after which the respondent would then have the opportunity to
object, cross-examine, or present his or her own case in defense.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Reversed and remanded with directions.
James R. Place, of Place Law Office, for appellant.
No appearance for appellees.
Pirtle, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Desire Steede, also known known as Desire Staples
(Desire), appeals from a harassment protection order entered
by the Douglas County District Court that extended an ex
parte harassment protection order against her for the protec-
tion of Harvey G. Prentice and Teresa S. Prentice until June 3,
2020. Desire claims there was insufficient evidence to support
the protection order. Upon our de novo review of the record,
we reverse, and remand with directions to vacate the protec-
tion order.
II. BACKGROUND
1. Petition and Affidavit for
Ex Parte Harassment Order
On May 31, 2019, pursuant to Neb. Rev. Stat. § 28-311.09
(Reissue 2016), the Prentices filed a petition and affidavit to
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
obtain a harassment protection order against Desire for their
protection. Harvey and Teresa were both named as petitioners
in the case caption, but only Harvey signed the document. The
affidavit included the following allegations: On May “24-25,”
Desire “threatened to do bodily harm and/or directly or indi-
rectly cause or otherwise contract and/or direct other unknown
persons to terminate the life of Teresa Prentice (see attached
transcripts).” Five other civil court case numbers and cap-
tions were listed in the entry; all captions included the name
“Staples” and/or the name “Steede,” but none included the
name “Prentice.” On May “24-27,” Desire “threatened to do
bodily harm and/or directly or indirectly cause or otherwise
contract and/or direct other unknown persons to terminate
the life of Harvey Prentice (see attached transcripts). Rev.
Harvey Prentice has been referred to by [Desire] as ‘dead man
preaching’ (see attached documents).” And on May 24, Desire
“vowed to either directly or indirectly contract with and or
cause unknown persons or entities to cause the destruction of
Ebenezer Baptist Church located at [an address on] Fowler
Ave, Omaha, NE,” and Desire “also made lewd and sexually
inappropriate comment[s] directed toward Harvey Prentice 25
May 2019 (see attached documents).”
Attached to the petition and affidavit were several pages
of screenshots of text messages, most coming from a certain
cell phone number. There are handwritten notations, in what
appear to be the same handwriting as the petition and affida-
vit, next to the text messages. We include a sampling of the
text messages here. A text message from May 24, 2019, at
9:26 a.m. reads:
U trying to help that sad excuse of a pile of shit name
Earl! . . . You didn’t help me get my son back you gar-
bage trash ho!!! Fuk u and your swirvel head husband!
I will find you and destroy you and I will snatch your
breath away from you for helping this dog! As far as I
can see Omari is of no good to me look like his pathetic
father! U will not see me coming you old bitch!!!!
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
A text message from 9:28 a.m. reads, “I will have your broke
ass church destroyed and leveled to a rubbled pile of dirt bricks
you Yello ho! Fuck u and die u and Earl!!!!” A text message
from 9:43 a.m. reads, “I’ll beat yo ass dude!!! . . . [F]uk u and
die!!!! U and ur ugly ass wife! . . . I will be com to destroy u
for not helping me!!!” A text message from less than 1 hour
later reads:
This is Desiree’s mother! Stop contacting my child and
mind your own business! You will really get hurt med-
dling in our affairs! Earl is not your concern and Omari
is not of your concern. Go fuck off! We tried to be nice
about it all and you and your sorry ass husband blew us
off! If you step to this I will get you and will waste no
time watching you bleed out!
The handwritten notations next to that text message read:
“Never contacted Desiree, Desiree called Harvey on/about Mar
1, 2019, to see if I knew where Earl lived. Had no contact
with him for 3-6 mos prior”; and, “Never contacted mother
or daughter or any member of the Starks family Steed fam-
ily.” A text message from May 25 at 3:33 a.m. reads, “This
is Desire[.] Earl is going back to jail for putting his hands on
me!!! I will be laughing at u and him and when I’m done u wil
be next!!!! Try me! I came back for Mr. Williams I will come
back for u too! U will die!” A text message from 1:03 p.m. that
day reads, “This is Dierra Bish!!!!! . . . Earl ass can’t stop my
sister from smoking weed and doing what the fuck we wanna
do! Bitch please! Church is over! And so are u! Bitch u carry
an expiration date!”
2. Ex Parte Order and
Request for Hearing
On June 3, 2019, the district court issued a 1-year ex parte
harassment protection order. Desire was enjoined from impos-
ing any restraint upon the person or liberty of Harvey and
Teresa; harassing, threatening, assaulting, molesting, attack-
ing, or otherwise disturbing the peace of Harvey and Teresa;
or telephoning, contacting, or otherwise communicating with
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
Harvey and Teresa. The order stated that if Desire wished to
appear and show cause why the order should not remain in
effect for a period of 1 year, she could return the request for
hearing form provided.
On July 1, 2019, the same day Desire was served with a
copy of the ex parte harassment protection order, she filed a
request for a hearing. The hearing was scheduled for July 29.
On July 25, Desire filed a resistance to the ex parte harassment
protection order alleging that the text messages attached to the
petition and affidavit were not transmitted by her, nor were
they transmitted on her behalf by other persons. She further
alleged that the cell phone number appearing on the text mes-
sages did not belong to, and had never belonged to, her and
was not associated with her cell phone. She asked that the ex
parte harassment protection order be dismissed immediately
because it was “based on false information.” Desire asked to be
awarded reasonable attorney fees and court costs.
3. Show Cause Hearing
The show cause hearing took place on July 29, 2019. The
Prentices appeared pro se, but Desire appeared with counsel.
No exhibits were offered or received into evidence. After
Harvey, Teresa, and Desire were sworn in, the district court
asked the Prentices to help the court understand their connec-
tion, if any, to Desire. Harvey stated:
[O]ur connection with her is through her . . . estranged
husband, Earl Staples. There is an ongoing feud between
them over the custody of the child. Earl . . . was a key-
board player in my church. . . .
The reason we are here now is because not only as the
pastor of the church but as trying to be a friend to [Earl],
to try to help him. I even tried to work with [Desire] and
her husband . . . to try to get them to talk [about their
relationship and save their marriage].
. . . Essentially, what happened is, [Desire] called me
in March, I believe, of this year to find out where Earl
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
was living. I didn’t know. . . . Well, the child was in
[Earl’s] custody, and he refused to return the child to her
to do the visits or whatever it was, and I told him that
was wrong. . . .
Well, essentially, he’s angry at me, and she’s angry at
me because she thinks that I was hiding [Earl] or I knew
his whereabouts. I had no idea where — Because he
moved from our church to some other church, and I lost
contact with him. . . . He finally contacted me, and he
said he wanted to come back. I said, Sure, you can come
back and play for the church. But after all of these text
messages —
Harvey stated that “the messages threatened me and my wife,
threatened to burn down the church.” When the court asked who
received the text messages, Harvey and Teresa said that they
both received them. The court acknowledged it had reviewed
the messages. When the court asked why they believed the
messages came from Desire, both Harvey and Teresa pointed
out that Desire “stated her name.” Harvey said the messages
“had to come from her or somebody who knew her,” because
“[t]here is no other way.” Harvey then said:
And because of this, we’ve had to increase our measures
of security at our church and our home because we can’t
take the risk that this person is not — she’s already . . .
I got a call at 3 o’clock in the morning on a . . . Sunday
morning, it was Earl. He called me because Desire and
her uncle and her sister and some other people were at
his house after him, and he called me. I didn’t know what
to do. I called the police, because where he was staying,
I couldn’t get there fast enough.
So her whole thing with me is, she’s angry with Earl,
and since I was the pastor at the church where he was
attending and trying [sic] befriend him to help him come
to grips that you have to share custody of your son with
the mother . . . she thinks that — or believes that I’m
her enemy. I need the protection order to stay in place
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
because I can’t take the risk. I’m too old to be out here
wrestling and fighting with people.
Desire’s counsel stated it was Desire’s position that the cell
phone number the text messages were sent from was not asso-
ciated in any way with her. Desire called two law enforcement
officers who testified that during an investigation, a forensic
download was done on Desire’s cell phone. Thousands of text
messages were able to be extracted from her cell phone, as
well as the contact list; nothing in the extractions related to the
cell phone number associated with the Prentice matter. During
the investigation, Earl Staples was asked for his cell phone
four times, but he refused.
In Desire’s testimony, she denied having another cell phone
besides the one she provided to law enforcement. Desire
also denied that she sent, or caused to be sent, text messages
to the Prentices on May 24, 25, and/or 27, 2019. On cross-
examination, Desire expressed her belief that Earl was respon-
sible for the messages.
In addressing the parties, the district court stated:
Here’s the problem, this is an unfortunate situation
that these people have been put in the middle of this.
They did not ask for this. I sincerely believe the police
officers and the conduct of what they did and the dump-
ing of the phones, and that that phone has absolutely
no evidence that those text messages were sent . . . that
the . . . cell phone that they extracted from Desire and
did the download dump of has no connection to this.
That, to me, has nothing to do with the fact of whether I
believe that she was part of sending those text messages,
from whatever number they came from, just not from
that phone. That would go beyond, I think, reasonable
comprehension, because I’ve read these text messages.
They are as outrageous as any text messages I have
ever read.
The court stated it was keeping the protection order in place in
favor of the Prentices.
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Nebraska Court of Appeals Advance Sheets
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
4. Harassment Protection Order
On July 30, 2019, the district court entered a harassment
protection order directing that the June 3 ex parte harassment
protection order was to remain in effect for a period of 1 year
from that date. Desire’s motion for new trial and/or motion
to reconsider and set aside the harassment protection order
was denied.
Desire appeals.
III. ASSIGNMENTS OF ERROR
Desire assigns, restated, that the district court erred by (1)
determining the petition and affidavit to obtain a harassment
protection order was sufficient to enter the ex parte order and
(2) determining the evidence was sufficient to support a harass-
ment protection order.
IV. STANDARD OF REVIEW
[1] A protection order is analogous to an injunction.
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).
Accordingly, the grant or denial of a protection order is
reviewed de novo on the record. Id.
V. ANALYSIS
1. Applicable Law
[2,3] At all times relevant to the district court proceedings
below, § 28-311.09 provided in relevant part:
(1) Any victim who has been harassed as defined
by section 28-311.02 may file a petition and affidavit
for a harassment protection order . . . . Upon the filing
of such a petition and affidavit in support thereof, the
court may issue a harassment protection order without
bond enjoining the respondent from (a) imposing any
restraint upon the person or liberty of the petitioner, (b)
harassing, threatening, assaulting, molesting, attacking,
or otherwise disturbing the peace of the petitioner, or (c)
telephoning, contacting, or otherwise communicating with
the petitioner.
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PRENTICE v. STEEDE
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(2) The petition for a harassment protection order
shall state the events and dates of acts constituting the
alleged harassment.
....
(7) Any order issued under subsection (1) of this
section may be issued ex parte without notice to the
respondent if it reasonably appears from the specific
facts shown by affidavit of the petitioner that irreparable
harm, loss, or damage will result before the matter can be
heard on notice. . . . If the respondent wishes to appear
and show cause why the order should not remain in effect
for a period of one year, he or she shall affix his or her
current address, telephone number, and signature to the
form and return it to the clerk of the district court within
five days after service upon him or her. Upon receipt
of the request for a show-cause hearing, the court shall
immediately schedule a show-cause hearing to be held
within thirty days after the receipt of the request for a
show-cause hearing and shall notify the petitioner and
respondent of the hearing date.
The purpose of § 28-311.09, and the definition of certain terms,
are contained in Neb. Rev. Stat. § 28-311.02 (Reissue 2016),
which provides in relevant part:
(1) It is the intent of the Legislature to enact laws
dealing with stalking offenses which will protect vic-
tims from being willfully harassed, intentionally terrified,
threatened, or intimidated by individuals who intention-
ally follow, detain, stalk, or harass them or impose any
restraint on their personal liberty and which will not pro-
hibit 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 seri-
ously terrifies, threatens, or intimidates the person and
which serves no legitimate purpose;
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PRENTICE v. STEEDE
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(b) Course of conduct means a pattern of conduct
composed of a series of acts over a period of time, how-
ever short, evidencing a continuity of purpose, including
a series of acts of following, detaining, restraining the
personal liberty of, or stalking the person or telephoning,
contacting, or otherwise communicating with the person.
Application of the law governing harassment protection orders
has been summarized as follows:
“Nebraska’s stalking and harassment statutes are given
an objective construction and . . . the victim’s experi-
ence 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 [victim] would be seriously terri-
fied, threatened, or intimidated by the perpetrator’s con-
duct. Id.”
Richards v. McClure, 290 Neb. 124, 132, 858 N.W.2d 841,
847 (2015) (quoting Glantz v. Daniel, 21 Neb. Ct. App. 89, 837
N.W.2d 563 (2013)).
[4,5] A prima facie case may be established by a form peti-
tion and affidavit. Mahmood v. Mahmud, 279 Neb. 390, 778
N.W.2d 426 (2010). But the petition and affidavit cannot be
considered as evidence until offered and accepted at the trial
as such. Id. The ex parte order does not relieve the petitioner
of the burden to establish by a preponderance of the evidence
the truth of the facts supporting a protection order. Id. The
Nebraska Supreme Court has recognized that “the procedures
at a show cause hearing might be less elaborate than those
commonly used at civil trials, but we have concluded that
‘at a minimum, testimony must be under oath and documents
must be admitted into evidence before being considered.’”
Richards v. McClure, 290 Neb. at 132, 858 N.W.2d at 848
(quoting Mahmood v. Mahmud, supra). Where the evidence
is insufficient, the appellate courts have reversed and vacated
harassment protection orders issued by lower courts. Richards
v. McClure, supra.
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PRENTICE v. STEEDE
Cite as 28 Neb. Ct. App. 423
2. Ex Parte Harassment
Protection Order
Desire argues that the district court erred by granting the
initial ex parte harassment protection order on June 3, 2019,
because she contends the facts set forth in the Prentices’ peti-
tion and affidavit were insufficient to enter such ex parte order.
Because we determine the issue is moot, we do not address this
assignment of error.
A moot case is one which seeks to determine a question
which does not rest upon existing facts or rights, in which
the issues presented are no longer alive. State on behalf of
Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d
749 (2004).
In State on behalf of Pathammavong v. Pathammavong,
supra, the mother challenged on appeal the trial court’s order
granting the father ex parte temporary custody. The Supreme
Court reasoned that “whether the temporary order was granted
in error was relevant only from the time it was ordered until
it was replaced by the order determining [the child’s] per-
manent custody placement.” Id. at 6, 679 N.W.2d at 754.
Accordingly, the court concluded the issue was moot and
declined to address it.
Similarly in the present case, any error in the district court’s
ex parte harassment protection order filed on June 3, 2019,
was relevant only until the court filed the harassment pro-
tection order on July 30, following the show cause hearing.
Accordingly, this issue is moot and we need not address
Desire’s arguments with respect to the ex parte order.
3. Harassment Protection Order
(a) Evidence at Show Cause Hearing
(i) Petition and Affidavit
The Prentices’ petition and affidavit for the harassment pro-
tection order was not offered or received into evidence at the
show cause hearing, and thus could not be considered by the
district court. See Mahmood v. Mahmud, 279 Neb. 390, 778
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N.W.2d 426 (2010) (prima facie case may be established by
form petition and affidavit, but neither will be considered as
evidence until offered and accepted at trial).
[6-9] We note that during the pendency of this appeal, the
Legislature amended § 28-311.09 operative January 1, 2020.
See 2019 Neb. Laws, L.B. 532, § 1. The amended statute
now provides in relevant part: “The petition and affidavit
shall be deemed to have been offered into evidence at any
show-cause hearing. The petition and affidavit shall be admit-
ted into evidence unless specifically excluded by the court.”
§ 28-311.09(7) (Supp. 2019). In considering whether to apply
§ 28-311.09(7), as amended, to this case, we note that pro-
cedural amendments to statutes are ordinarily applicable to
pending cases, while substantive amendments are not. See
In re Guardianship of Carlos D., 300 Neb. 646, 915 N.W.2d
581 (2018).
This is because a substantive right is one which creates a
right or remedy that did not previously exist and which,
but for the creation of the substantive right, would not
entitle one to recover. . . . A procedural amendment, on
the other hand, simply changes the method by which an
already existing right is exercised. . . . Put another way, a
substantive law commonly creates duties, rights, and obli-
gations of a party, whereas a procedural law prescribes
the means and methods through and by which substantive
laws are enforced and applied.
Id. at 656, 915 N.W.2d at 587-88. See, also, Great Northern
Ins. Co. v. Transit Auth. of Omaha, 305 Neb. 609, 941 N.W.2d
497 (2020) (statutes covering substantive matters in effect at
time of transaction or event govern, not later enacted statutes;
but where amendment to statute was procedural change, it is
binding upon tribunal upon effective date of amendment).
[10] At issue in this case is whether the Prentices proved
by a preponderance of the evidence that Desire was harassing
them. As noted above, a substantive law commonly creates
duties, rights, and obligations of a party. In re Guardianship
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of Carlos D., supra. The change to § 28-311.09 affects the
substance of the harassment claim because it affects the
duties, rights, and obligations of the parties in that it now
allows the petition and affidavit to automatically be deemed
offered and received into evidence, whereas previously, and
at the time of the lower court proceedings in this case, the
petition and affidavit had to be verbally offered and received
into evidence to be considered. In other words, the change
to § 28-311.09 affects the substance of the claim because it
changes the duty and obligation of a petitioner, the Prentices
in this case, to prove his or her claim by offering the peti-
tion and affidavit into evidence, or otherwise testifying to
the contents of such petition and affidavit—something that
did not happen at the show cause hearing in this case. Had
the Prentices offered the petition and affidavit into evidence,
or otherwise testified to the contents therein, the respondent,
Desire in this case, would then have had the opportunity
to object, cross-examine, or present his or her own case
in defense. It would be patently unfair to circumvent the
respond­ent’s opportunity to challenge the petitioner or present
his or her own case by automatically considering the petition
and affidavit as evidence after the fact.
Therefore, we conclude that the amendment to § 28-311.09
which was operative on January 1, 2020, was a substantive
change that was not applicable to this case. Accordingly, under
the law applicable at the time of this case, the Prentices’ peti-
tion and affidavit for the harassment protection order could
not and cannot be considered as evidence because it was not
offered or received into evidence at the show cause hear-
ing. See Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d
426 (2010).
(ii) Testimony
No exhibits were offered or received into evidence at the
show cause hearing; thus, the only evidence comes from
testimony. The Prentices did not testify in detail about the
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contents of their petition and affidavit—and the attached text
messages—which were not otherwise received into evidence.
The Prentices’ testimony boils down to Harvey’s statement
that “the messages threatened me and my wife, threatened to
burn down the church”; the Prentices’ statements that they
both received the text messages and that Desire “stated her
name”; and Harvey’s statement that the messages “had to come
from her or somebody who knew her,” because “[t]here is no
other way.”
In response, Desire presented testimony from law enforce-
ment officers that thousands of text messages were able to be
extracted from her cell phone, as well as the contact list, and
that nothing in the extractions related to the cell phone num-
ber associated with the Prentice matter. And in her testimony,
Desire denied having another cell phone besides the one she
provided to law enforcement. She also denied that she sent, or
caused to be sent, text messages to the Prentices on May 24,
25, and/or 27, 2019. On cross-examination, Desire expressed
her belief that Earl was responsible for the messages. And law
enforcement testified that during the investigation, Earl was
asked for his cell phone four times, but he refused.
(b) Was Evidence Sufficient?
The district court clearly relied on the content of the text
messages it “reviewed,” but as noted previously, the petition
and affidavit to which the text messages were attached was not
offered or received into evidence at the hearing and could not
be considered.
Upon our de novo review of the record, we find that the
Prentices’ testimony was not sufficient to prove by a pre-
ponderance of the evidence that Desire harassed them. See
Mahmood v. Mahmud, supra (petitioner has burden to estab-
lish by preponderance of evidence truth of facts supporting
protection order). The definition of “harass” requires a course
of conduct directed at a specific person which seriously terri-
fies, threatens, or intimidates the person and which serves no
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legitimate purpose. See § 28-311.02(2). Here, a claim that text
messages allegedly sent by Desire “threatened” the Prentices
and their church was not enough to support the harassment
protection order. Because the evidence at the show cause hear-
ing was insufficient to support the harassment protection order,
the ex parte order should not have been extended.
VI. CONCLUSION
Upon our de novo review, we conclude that the district court
erred in extending the harassment protection order. We there-
fore reverse the judgment and remand the cause with directions
to vacate the order.
Reversed and remanded with directions.