State v. Vanderford

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/09/2022 01:07 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. VANDERFORD
Cite as 312 Neb. 580State of Nebraska, appellee, v.
Christine E. Vanderford, appellant.
___ N.W.2d ___
Filed October 14, 2022. No. S-20-849.
1. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determina-
tion, an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, evaluate explanations, or reweigh the
evidence presented, because these are within a fact finder’s province for
disposition. Instead, the relevant question 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.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court
below.
3. Statutes. Statutory analysis begins with the text.
4. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
5. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
6. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter may be conjunctively con-
sidered and construed to determine the intent of the Legislature so that
different provisions of an act are consistent, harmonious, and sensible.
7. Criminal Law: Statutes. Penal statutes must be strictly construed and
are considered in the context of the object sought to be accomplished,
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312 Nebraska Reports
STATE V. VANDERFORD
Cite as 312 Neb. 580the evils and mischiefs sought to be remedied, and the purpose sought
to be served. A penal statute will not be applied to situations or parties
not fairly or clearly within its provisions.
8. ____: ____. To determine the elements of a crime, courts look to the text
of the enacting statute.
9. Criminal Law: Intent: Words and Phrases. A person commits the
crime of exploiting a vulnerable adult under Neb. Rev. Stat. § 28-386(Reissue 2016) by knowingly and intentionally engaging in an act which
causes or permits a “vulnerable adult,” as that term is defined in Neb.
Rev. Stat. § 28-371 (Reissue 2016), to be subjected to “exploitation,” as
that term is defined in Neb. Rev. Stat. § 28-358 (Reissue 2016).
10. Criminal Law: Statutes: Words and Phrases. Although the statutory
definition of exploitation in Neb. Rev. Stat. § 28-358 (Reissue 2016) is
broad enough to encompass what might generally be described as finan-
cial exploitation, it is by no means limited to only financial crimes.
11. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
12. ____. An alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be considered
by an appellate court.
13. Convictions. A conviction on one count cannot be overturned merely
because it is inconsistent with the fact finder’s decision not to convict
on another count.
14. Criminal Law: Trial: Judges. A trial judge sitting without a jury is not
required to articulate findings of fact or conclusions of law in crimi-
nal cases.
15. Trial. In civil cases, parties may ask a court to make specific findings
under Neb. Rev. Stat. § 25-1127 (Reissue 2016), but that statute has no
application to criminal proceedings.
Appeal from the District Court for Lancaster County:
Robert R. Otte, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellant.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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312 Nebraska Reports
STATE V. VANDERFORD
Cite as 312 Neb. 580Stacy, J.
Following a bench trial, Christine E. Vanderford was found
guilty of exploiting a vulnerable adult, in violation of Neb. Rev.
Stat. § 28-386 (Reissue 2016). The district court sentenced her
to 5 years’ probation. Vanderford appeals, and we affirm.
I. BACKGROUND
At the time of the events giving rise to the criminal charges
in this case, Vanderford was a licensed attorney in Lincoln,
Nebraska. On December 5, 2019, she was charged with exploi-
tation of a vulnerable adult (a Class IIIA felony) and theft by
deception, $5,000 or more (a Class IIA felony). The State later
amended the theft charge to theft by unlawful taking, $5,000 or
more (a Class IIA felony).
As relevant to the exploitation charge, the information
alleged that Vanderford “on, about, or between July 8, 2014
and February 28, 2018, in the County of Lancaster and State
of Nebraska, then and there being, through a knowing and
intentional act, did cause or permit a vulnerable adult or senior
adult to be exploited.” The exploitation charges were based
on Vanderford’s conduct while serving as a court-appointed
coguardian for J.R.K., an adult woman with disabilities, and
simultaneously serving as cotrustee of a special needs trust
established for J.R.K.’s benefit.
Vanderford entered not guilty pleas and waived her right to
a jury trial. A bench trial was held over the course of several
days, and both parties adduced evidence. We summarize that
evidence in the next section, to the extent necessary to address
the assignments of error raised on appeal.
1. Evidence Adduced at Trial
(a) J.R.K.
J.R.K. is an adult woman with mental disabilities. Due
to these disabilities, she receives Social Security disability
income and qualifies for Medicaid benefits, including voca-
tional and residential services. During the relevant time peri-
ods, J.R.K. lived with, and was assisted in her daily activities
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Cite as 312 Neb. 580by, an “extended family home provider” (EFH), who was paid
a daily contract rate by the State of Nebraska. J.R.K. also
earned income from working part-time jobs.
(b) J.R.K.’s Guardianship,
Conservatorship, and Trusts
In 2006, J.R.K. moved to Nebraska to live with her mother
and stepfather (the Krotzes). That same year, the Krotzes
hired Vanderford to set up a guardianship and conservator-
ship for J.R.K., and both were established in the county court
for Lancaster County. The Krotzes were appointed to serve as
J.R.K.’s coconservators and coguardians.
In 2011, J.R.K.’s biological father died and J.R.K. received
an inheritance. The Krotzes hired Vanderford to set up a trust
designed to allow J.R.K. to keep her inheritance without losing
her government benefits. Vanderford established an “irrevo-
cable supplemental needs trust” for J.R.K.’s benefit, with the
Krotzes serving as cotrustees. After the irrevocable supple-
mental needs trust was established, J.R.K.’s conservatorship
was terminated, but the guardianship continued.
About 2 years later, Vanderford assisted the Krotzes in cre-
ating a second trust for J.R.K.’s benefit. Vanderford created
a “self-settled special needs trust” (SSSNT), and its stated
purpose was “to supplement, but not replace any benefits
or assistance of any Federal or State governmental entity
to which Beneficiary may be eligible or which Beneficiary
may be receiving.” The Krotzes were named as cotrustees of
the SSSNT, and Vanderford was named as alternate succes-
sor trustee.
(c) Vanderford Appointed J.R.K.’s Coguardian
and Begins Handling J.R.K.’s Finances
In 2014, J.R.K.’s mother died. J.R.K.’s stepfather did not
want to handle the guardianship responsibilities alone, and
he asked Vanderford to serve as J.R.K.’s coguardian and
to assume primary handling of J.R.K.’s financial affairs.
Vanderford agreed, but told the stepfather that because she
had a solo legal practice, she may need to charge her regular
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STATE V. VANDERFORD
Cite as 312 Neb. 580hourly legal rate for services provided to J.R.K. during busi-
ness hours. The stepfather agreed to such a billing arrange-
ment, assuming it would be “an infrequent thing,” because the
EFH was primarily responsible for taking J.R.K. to medical
and dental appointments and driving her on excursions during
the day. There was no evidence that the guardianship court
was made aware of, or approved of, the billing arrangement
proposed by Vanderford.
In July 2014, the county court appointed Vanderford to
serve as J.R.K.’s coguardian. The letters of guardianship con-
tained the following admonishment in bold and underlined
typeface:
You shall not pay compensation to yourself or your
attorney from assets or income of your ward/incapaci-
tated person . . . without first giving notice to inter-
ested persons and obtaining an order of the court. The
order may be entered without a hearing if all inter-
ested person have waived notice or have executed their
written consent to the fee.
In addition to this admonishment on compensation, the letters of
guardianship required Vanderford to file, annually, “a complete
accounting of your administration of the ward’s . . . money,
assets, possessions or income (including social security or other
benefits) if you have possession of such.” 1
Several months after Vanderford was appointed as J.R.K.’s
coguardian, the SSSNT was amended to make Vanderford a
cotrustee. From that point on, Vanderford established a close
relationship with J.R.K., who grew to consider Vanderford
her “best friend.” The record shows the two exchanged hun-
dreds of text messages, went to movies and baseball games
together, attended J.R.K.’s therapy and medical appointments
together, and went on trips together. Vanderford characterized
1
See Neb. Rev. Stat. § 30-2628(6) (Reissue 2016) (“[a] guardian is required
to report the condition of his or her ward and of the estate which has been
subject to the guardian’s possession or control, at least every year and as
required by the court or court rule”).
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STATE V. VANDERFORD
Cite as 312 Neb. 580her relationship with J.R.K. as that of “proxy mother” and
testified that she was asked to assume such a role by J.R.K.’s
mother before she died. 2
(d) Vanderford Becomes Cosigner
on J.R.K.’s Accounts
Before Vanderford began managing J.R.K.’s finances, three
accounts had been set up for J.R.K.’s benefit. One account was
described as J.R.K.’s guardianship account, another was an
investment account associated with the SSSNT, and the third
was an account associated with the irrevocable supplemental
needs trust. After Vanderford was appointed coguardian and
named cotrustee of the SSSNT, she became an authorized
cosigner on J.R.K.’s accounts.
In addition, Vanderford opened three new accounts for
J.R.K. at the same bank where Vanderford kept her business
and personal accounts. One of the new accounts was desig-
nated as a guardianship account for J.R.K. and was funded
primarily by J.R.K.’s Social Security income. Another account
was designated as a “special needs trust” account, although the
evidence showed it was operated as an ordinary bank account.
The third account was designated as a “debit card account,”
which J.R.K. was also authorized to use subject to daily spend-
ing limits; this account was funded in part by J.R.K.’s wages,
gifts, and transfers from other accounts maintained for J.R.K’s
benefit.
The evidence showed that from November 2015 forward,
all of J.R.K.’s accounts—both old and new—were managed
primarily by Vanderford. However, when Vanderford filed
her annual guardianship accountings in 2016 and 2017, she
included only the accounts designated as J.R.K.’s guardianship
accounts; Vanderford did not report or provide an accounting
for any of the other accounts maintained for J.R.K.’s benefit
over which Vanderford had control.
2
Brief for appellant at 7.
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STATE V. VANDERFORD
Cite as 312 Neb. 580(e) Vanderford’s Financial Difficulties
The evidence was undisputed that while Vanderford was
serving as coguardian for J.R.K. and as cotrustee of the SSSNT,
she was experiencing significant financial problems within her
law practice. When the financial problems persisted into 2016,
Vanderford hired a business consultant to advise her.
After a review, the consultant identified significant financial
issues within the firm. She noted that Vanderford pulled “exor-
bitant amounts of money out of the business for personal spend-
ing without regard to payroll or other overhead.” The firm did
not have enough money to “make ends meet,” and employees’
paychecks were “bouncing.” According to the consultant, these
financial issues stemmed in part from the fact that Vanderford
was “constantly distracted,” “rarely complete[d] work in a
timely manner,” and had “no consistent follow through as far
as entering time to be billed.” It was the consultant’s opinion
that Vanderford tracked her billable time “by her calendar,”
“via emails,” or just “in her head.” After months of working
unsuccessfully to correct these financial issues, the consultant
terminated the relationship with Vanderford’s firm.
(f) Investigations
In early 2017, the EFH working with J.R.K. became sus-
picious when she learned that the money in one of J.R.K.’s
accounts was being rapidly depleted. The EFH reported her
concerns to her supervisor, 3 and an Adult Protective Services
investigator was assigned to look into the matter.
The investigator met with J.R.K., after which she reviewed
J.R.K.’s guardianship records, bank records, and J.R.K.’s indi-
vidual service plan at the Department of Health and Human
Services. The investigator discovered that Vanderford had
been transferring money between J.R.K.’s accounts and mak-
ing payments to herself out of J.R.K.’s accounts. The guard-
ianship court was notified of the Adult Protective Services
3
See Neb. Rev. Stat. § 28-372 (Reissue 2016) (setting out reporting require-
ments for suspected abuse, neglect, or exploitation of vulnerable adult).
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STATE V. VANDERFORD
Cite as 312 Neb. 580investigation; eventually, Vanderford and J.R.K.’s stepfather
agreed to step down as J.R.K.’s coguardians, and a successor
guardian was appointed for J.R.K. in early 2018.
In March 2018, Adult Protective Services completed its
investigation and concluded that J.R.K. was being financially
exploited by Vanderford. Adult Protective Services turned its
findings over to the Lincoln Police Department, and an offi-
cer assigned to the department’s technical investigations unit
looked into the matter further. His investigation revealed that
while serving as J.R.K.’s coguardian and cotrustee of the
SSSNT, Vanderford made multiple payments to herself out of
J.R.K.’s accounts without court approval. Vanderford claimed
those payments were meant to compensate her for various legal
and personal services she performed for J.R.K. and for various
services performed by Vanderford’s paralegal. Almost all of the
services were billed at Vanderford’s hourly legal rate of $215
or at her paralegal’s hourly rate. Although the investigator was
not able to locate an invoice for every payment to Vanderford,
he was able to match up some payments with invoices prepared
by Vanderford’s law firm.
The invoices in our record show extensive billing by
Vanderford for services related to J.R.K. Many of the billing
entries were for nonlegal services related to J.R.K.’s personal
care and maintenance, including invoices for communicat-
ing with J.R.K., accompanying J.R.K. to counseling sessions
and medical appointments, and meeting with others regarding
J.R.K.’s behaviors, needs, and benefits. Examples of such bill-
ings include:
••A charge of $5,805 for 27 hours of work, described on the
invoice as:
[C]ounselor meeting attendance (6 meetings) to help
address [J.R.K.’s] behavior issues, doctors appointments
(arranging them and attending) including her medical
review nurse, Michelle Lemon, and tweaking medica-
tion type and dosage, attending IPP meetings (semi and
annual, including travel to and back, approximately 2
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STATE V. VANDERFORD
Cite as 312 Neb. 580hours each), working with [J.R.K.’s] EFH’s regarding
[J.R.K.’s] behaviors . . . , meetings with Richard and/or
Richard and EFH to coordinate [J.R.K.’s] needs; inter-
viewing ILC at meeting with ILC to see if [J.R.K.] needs
work transferred from Vital
••A charge of $9,083.75 for 42.25 hours of work, described on
the invoice as:
[I]nvolvement with email communication regarding
[J.R.K.]; 169 Emails not yet invoiced to [J.R.K.] for
2015 and 2016 regarding her care, filing for her Medicaid
renewable, taking care of her tax situation, oversight on
guardianship paperwork for 2015 - through 9/20/2016
••A charge of $1,935 for 9 hours of work, described on the
invoice as:
Preparation of Trip to Florida; take [J.R.K.] to Omaha for
TSA PreCheck; take [J.R.K.] again after first trip didn’t
yield results
••A charge of $1,612.50 for 7.50 hours of work, described on
the invoice as:
[T]ravel to get [J.R.K.] to take her to work; travel to get
[J.R.K.] to take her to dental appointment that was can-
celled, travel to take [J.R.K.] to go to Verizon to buy new
phone and spend time getting new phone set up; addi-
tional time with [J.R.K.’s] phone at Verizon to straighten
out billing issues.
As the above billings suggest, J.R.K. took a trip to Florida
in 2017. Vanderford accompanied J.R.K. on that trip, after
which she paid herself $4,000 from one of J.R.K.’s accounts.
Although no invoice was located for this payment, the memo-
randum line on the check reads: “Florida $500 day per diem/
8 days.”
When paying these invoices, Vanderford regularly used
checks from J.R.K’s various accounts and made them out to
herself or her law firm. On at least one occasion, Vanderford
caused J.R.K.’s account to incur an overdraft fee after writing
a check to herself which did not clear. On another occasion,
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STATE V. VANDERFORD
Cite as 312 Neb. 580Vanderford transferred funds from one of J.R.K.’s accounts
directly into Vanderford’s personal checking account which,
prior to the transfer, was overdrawn.
According to the investigator’s findings, Vanderford made
16 payments to herself from J.R.K.’s various accounts totaling
$65,258.89. The record shows that Vanderford made most, if
not all, of these payments to herself without seeking or obtain-
ing prior court approval.
2. Verdict
In September 2020, the district court announced its verdict
in open court. On count 1, exploitation of a vulnerable adult,
the court recited that the State had proved all material ele-
ments of the crime beyond a reasonable doubt, and it found
Vanderford guilty. In a written verdict entered the same day,
the court expressly found the State had proved beyond a rea-
sonable doubt:
1. That J.R.K. was a vulnerable adult, and
2. That [Vanderford] did cause or permit or subject
J.R.K[.], to exploitation, and
3. That [Vanderford] did so knowingly and intention-
ally, and
4. That the actions of [Vanderford] took place on or
about or between July 8, 2014, and February 28, 2018, in
Lancaster County, Nebraska.
The written verdict also stated that the court, in reaching its
verdict, used the definition of “[v]ulnerable adult” appearing
in Neb. Rev. Stat. § 28-371 (Reissue 2016), the definition of
“[s]ubstantial mental impairment” appearing in Neb. Rev. Stat.
§ 28-369 (Reissue 2016), and the definition of “[e]xploitation”
appearing in Neb. Rev. Stat. § 28-358 (Reissue 2016). We
address these statutory definitions later in our analysis.
On count 2, theft by unlawful taking in the amount of
$5,000 or more, the court found Vanderford not guilty. The
court set the matter for sentencing and ordered a presentence
investigation.
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STATE V. VANDERFORD
Cite as 312 Neb. 5803. Posttrial Motion and Sentencing
Vanderford filed a timely motion for new trial under Neb.
Rev. Stat. § 29-2101 (Reissue 2016), asserting, among other
things, that her acquittal on the theft charge was inconsistent
with her conviction for exploitation and that the evidence was
insufficient to support the conviction. The court overruled the
motion for new trial and sentenced Vanderford to 5 years’
probation. Vanderford filed this timely appeal, represented by
trial counsel.
II. ASSIGNMENTS OF ERROR
Vanderford assigns, reordered and rephrased, that the dis-
trict court erred in convicting her of exploiting a vulnerable
adult, because (1) the definition of exploitation necessarily
requires proof of a financial crime and the State failed to
prove a financial crime; (2) there was insufficient evidence
that it was “wrongful or unauthorized” 4 for Vanderford to pay
herself from J.R.K.’s accounts; (3) the State failed to prove
that Vanderford acted with sufficient mens rea to support the
offense of exploiting a vulnerable adult, because such a con-
viction cannot be “based upon negligence or a mere breach of
a fiduciary duty”; (4) the guilty verdict on count 1 was incon-
sistent with the acquittal on count 2; (5) sentencing remarks by
the court contradict the guilty verdict; and (6) the district court
failed to make sufficient conclusions of law when rendering
its verdict.
III. STANDARD OF REVIEW
[1] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. 5 In making this determination, an
appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or
4
§ 28-358.
5
State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).
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STATE V. VANDERFORD
Cite as 312 Neb. 580reweigh the evidence presented, because these are within a fact
finder’s province for disposition. 6 Instead, the relevant ques-
tion 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. 7
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 8
IV. ANALYSIS
1. Proving Exploitation of Vulnerable Adult
Several of Vanderford’s arguments on appeal challenge
whether the district court correctly identified the material ele-
ments that the State needed to prove in order to convict her of
the crime of exploiting a vulnerable adult. Her other arguments
are generally aimed at challenging the sufficiency of the evi-
dence to support her conviction. To address these arguments,
we begin by interpreting the statutes setting forth the material
elements of the crime for which Vanderford was convicted—
exploitation of a vulnerable adult.
[3-7] Statutory analysis begins with the text. 9 Statutory lan-
guage is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and unam-
biguous. 10 Similarly, it is not within the province of the courts
to read meaning into a statute that is not there or to read any-
thing direct and plain out of a statute. 11 Components of a series
6
Id.7
Id.8
State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
9
Taylor, supra note 5.
10
State v. Knight, 311 Neb. 485, 973 N.W.2d 356 (2022).
11
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STATE V. VANDERFORD
Cite as 312 Neb. 580or collection of statutes pertaining to a certain subject matter
may be conjunctively considered and construed to determine
the intent of the Legislature so that different provisions of an
act are consistent, harmonious, and sensible. 12 Penal statutes
must be strictly construed and are considered in the context of
the object sought to be accomplished, the evils and mischiefs
sought to be remedied, and the purpose sought to be served. 13
A penal statute will not be applied to situations or parties not
fairly or clearly within its provisions. 14
[8] To determine the elements of a crime, we look to the
text of the enacting statute. 15 The crime of exploiting a vulner-
able adult is contained within the Adult Protective Services
Act (APSA). 16 Determining the elements of that crime requires
consideration of several statutes within the APSA.
The APSA criminalizes the knowing and intentional exploi-
tation of a vulnerable adult in § 28-386, which provides, in
relevant part:
(1) A person commits knowing and intentional . . .
exploitation of a vulnerable adult or senior adult if he or
she through a knowing and intentional act causes or per-
mits a vulnerable adult or senior adult to be:
....
(d) Exploited.
....
(2) Knowing and intentional . . . exploitation of a vul-
nerable adult or senior adult is a Class IIIA felony.
For purposes of the APSA, a “[v]ulnerable adult” is defined in
§ 28-371 as “any person eighteen years of age or older who has
a substantial mental or functional impairment or for whom a
12
State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
13
Id.14
Id.15
State v. Grutell, 305 Neb. 843, 943 N.W.2d 258 (2020).
16
See Neb. Rev. Stat. §§ 28-348 to 28-387 (Reissue 2016 & Cum. Supp.
2020).
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Cite as 312 Neb. 580guardian or conservator has been appointed under the Nebraska
Probate Code.”
The term “exploitation” for purposes of the APSA is
defined in § 28-358. When the APSA was first enacted in
1988, exploitation was defined as “the taking of property of
a vulnerable adult by means of undue influence, breach of
a fiduciary relationship, deception, or extortion or by any
unlawful means.” 17 Effective July 19, 2012, the Legislature
amended the definition of “exploitation” to mean “the taking
of property of a vulnerable adult by any person by means of
undue influence, breach of a fiduciary relationship, deception,
or extortion or by any unlawful means.” 18 And in 2016, the
statutory definition of “exploitation” was amended again. 19 It
currently provides:
Exploitation means the wrongful or unauthorized tak-
ing, withholding, appropriation, conversion, control, or
use of money, funds, securities, assets, or any other prop-
erty of a vulnerable adult or senior adult by any person by
means of undue influence, breach of a fiduciary relation-
ship, deception, extortion, intimidation, force or threat of
force, isolation, or any unlawful means or by the breach
of a fiduciary duty by the guardian, conservator, agent
under a power of attorney, trustee, or any other fiduciary
of a vulnerable adult or senior adult. 20
This expanded definition of exploitation has been in effect
since April 19, 2016. We note that the information charging
Vanderford with intentional or knowing exploitation of a vul-
nerable adult alleged a timeframe from July 8, 2014, through
February 28, 2018, so both the 2012 and the 2016 statutory
definitions of exploitation are potentially relevant.
17
See 1988 Neb. Laws, L.B. 463, § 11, codified at § 28-358 (Reissue 1995).
18
See 2012 Neb. Laws, L.B. 1051, § 6 (emphasis supplied), codified at
§ 28-358 (Cum. Supp. 2012).
19
See 2016 Neb. Laws, L.B. 934, § 4, codified at § 28-358 (Reissue 2016).
20
§ 28-358.
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STATE V. VANDERFORD
Cite as 312 Neb. 580[9] Reading §§ 28-386, 28-371, and 28-358 together, it is
clear that a person commits the crime of exploiting a vulner-
able adult by knowingly and intentionally engaging in an act
which causes or permits a “vulnerable adult,” as that term is
defined in § 28-371, to be subjected to “exploitation,” as that
term is defined in § 28-358.
In this appeal, Vanderford asserts that to prove the elements
of exploitation of a vulnerable adult, the State must necessarily
prove “a financial crime against a vulnerable adult.” 21 More
specifically, Vanderford asserts that “[t]he offense of exploita-
tion is a financial crime, that requires [proof of] an underlying
theft or wrongful or [un]authorized taking.” 22 She argues that
the court erred in failing to find the same. Vanderford does not
explain what, precisely, she means by a “financial crime,” but
regardless, we think her argument oversimplifies the current
statutory scheme.
The current definition of “exploitation” lists six proscribed
acts: the wrongful or unauthorized “taking,” “withholding,”
“appropriation,” “conversion,” “control,” or “use” of prop-
erty belonging to the vulnerable adult or senior adult. And
it describes five categories of property: “money,” “funds,”
“securities,” “assets,” or “any other property of a vulnerable
adult or senior adult.” Most of these categories can fairly be
characterized as financial in nature, but the catchall category
of “any other property” is broad enough to encompass both
real property and personal property. Finally, the definition of
exploitation lists the means by which the proscribed acts must
be accomplished by the perpetrator, and those means are not
restricted to financial scenarios. Rather, the possible means
include: “undue influence,” “breach of a fiduciary relation-
ship,” “deception,” “extortion,” “intimidation,” “force or threat
of force,” “isolation,” “any unlawful means,” or by “the breach
of a fiduciary duty by the guardian, conservator, agent under a
21
Brief for appellant at 12.
22
Id. at 8.
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Cite as 312 Neb. 580power of attorney, trustee, or any other fiduciary of a vulner-
able adult or senior adult.”
[10] As such, under the current definition of “exploitation,”
there are a myriad of different ways to commit the crime of
exploiting a vulnerable adult. And although the statutory defini-
tion of exploitation in § 28-358 is broad enough to encompass
what might generally be described as financial exploitation, it
is by no means limited to only financial crimes. We therefore
reject, as impermissibly narrow, Vanderford’s contention that
proving the crime of exploitation necessarily requires proof of
a financial crime.
We likewise reject Vanderford’s suggestion that the district
court erred when it recited the material elements of exploita-
tion of a vulnerable adult. With respect to count 1, the court
recited in its written verdict that the State had the burden to
prove each of the following elements beyond a reasonable
doubt: (1) that J.R.K. was a vulnerable adult as defined in
§§ 28-371 and 28-369; (2) that Vanderford knowingly and
intentionally caused or permitted J.R.K. to be exploited as
defined in § 28-358; and (3) that Vanderford did so on, about,
or between the dates of July 8, 2014, and February 28, 2018,
in Lancaster County. We find that the court’s order correctly
recited the material elements which the State was required to
prove beyond a reasonable doubt on the charge of exploitation
of a vulnerable adult.
With these material elements in mind, and considering the
evidence in the light most favorable to the State, we next
consider whether the evidence was insufficient to convict
Vanderford of exploiting a vulnerable adult.
Most of the pertinent evidence was undisputed. Vanderford
does not dispute that J.R.K. is a vulnerable adult. She admits
that “there was a fiduciary relationship between Vanderford
and J.R.K.,” and she admits that she owed J.R.K. a fiduciary
duty as her court-appointed coguardian and as cotrustee of
the SSSNT established for J.R.K.’s benefit during the relevant
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Cite as 312 Neb. 580timeframe. 23 She also admits that during the relevant time
period, she billed J.R.K. for personal services at the hourly rate
she used for legal work, and then paid herself from J.R.K.’s
accounts without requesting or obtaining approval from the
guardianship court.
The letters of guardianship, as well as the order appoint-
ing Vanderford to serve as coguardian, expressly prohibited
Vanderford from paying compensation to herself from J.R.K.’s
assets or income without first obtaining an order of the court.
The evidence showed that Vanderford regularly disregarded
this requirement. She knowingly and intentionally used her
position as coguardian and cotrustee to repeatedly compensate
herself from accounts established for J.R.K. over which she
had control, and she did so without seeking or obtaining court
approval. And despite managing multiple accounts containing
J.R.K’s money, assets, and income, Vanderford did not pro-
vide the guardianship court with a complete accounting of her
administration of those accounts. Whether or not Vanderford
was deliberately attempting to hide her conduct from the guard-
ianship court, this improper exercise of power was wrongful
and unauthorized under the letters of guardianship, as well as
the order appointing Vanderford to serve as coguardian, and
resulted in a breach of the fiduciary duty Vanderford owed to
J.R.K. as her court-appointed guardian.
As such, a rational trier of fact could have found that
Vanderford’s knowing and intentional conduct in compensat-
ing herself from J.R.K.’s accounts, without obtaining prior
court approval, caused or permitted J.R.K. to be exploited as
that term is defined in § 28-358. The evidence supports the
conclusion that Vanderford’s intentional conduct resulted in the
wrongful or unauthorized taking, appropriation, conversion, or
use of J.R.K.’s money, funds, or assets, and that Vanderford
did so either by means of the breach of a fiduciary relation-
ship or by the breach of a fiduciary duty as J.R.K.’s guardian.
23
See brief for appellant at 22.
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Cite as 312 Neb. 580And, for the sake of completeness, we note that the evidence
is sufficient under both the current definition of exploita-
tion in § 28-358 and the definition in effect before the 2016
amendments.
[11] The State also argues that Vanderford committed other
wrongful and unauthorized acts which amounted to exploita-
tion of a vulnerable adult. But ultimately, we need not address
those arguments. We have already determined that a rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt, 24 and it is unnecessary to dis-
cuss all the possible ways in which the evidence might support
a finding of exploitation. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 25
2. Vanderford’s Arguments Challenging
Sufficiency of Evidence
Vanderford presents four arguments challenging the suffi-
ciency of the evidence to support her conviction for exploiting
a vulnerable adult. We address each argument in turn and find
all to be meritless.
(a) Consent of J.R.K.’s Stepfather
First, Vanderford argues the evidence does not support a
finding that her conduct was “wrongful or unauthorized.” She
points to evidence that J.R.K.’s stepfather and coguardian
agreed early on that Vanderford could charge her regular hourly
legal rate for providing guardianship services and that he “was
aware of and approved of what Vanderford was doing.” 26
[12] Vanderford’s brief also broadly states that “[t]he evi-
dence established that [she] was permitted or authorized by the
24
See Taylor, supra note 5.
25
Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696(2021).
26
Brief for appellant at 14.
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Cite as 312 Neb. 580Trust instruments to pay herself for legal services and for per-
sonal services she provided to J.R.K.” 27 But Vanderford neither
describes nor explains which trust terms she is relying on for
this statement. 28 Nor does she present any argument explaining
how or why the trust instruments in this case authorized her to
compensate herself from J.R.K.’s assets without seeking prior
approval from the guardianship court. Because an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by an
appellate court, 29 we do not consider Vanderford’s unsupported
assertion that the trust instruments authorized her conduct.
Further, we soundly reject Vanderford’s suggestion that
the coguardian’s apparent knowledge and tacit approval of
her conduct in compensating herself from J.R.K.’s accounts
without obtaining prior court approval has any bearing on
whether her conduct was wrongful and unauthorized. It is
undisputed that during the entire time Vanderford was paying
herself from J.R.K.’s assets, she was serving as J.R.K.’s court-
appointed guardian and was subject to the express admonish-
ment that “You shall not pay compensation to yourself or
your attorney from assets or income of your ward/inca-
pacitated person . . . without first . . . obtaining an order
of the court.” This admonition could not have been more
clear, and it contained no exceptions. Absent court approval,
Vanderford’s conduct in paying herself from J.R.K.’s assets
was wrongful and unauthorized, and the coguardian’s tacit
approval of such conduct is immaterial. Her argument in this
regard is meritless.
27
Id. at 13.
28
See Neb. Ct. R. App. P. § 2-109(D)(1)(g) (rev. 2022) (“[e]ach and
every recitation of fact, whether in the statement of facts or elsewhere
in the brief, shall be annotated to the record in the manner set forth in
§ 2-109(C)”).
29
State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021), modified on
denial of rehearing 309 Neb. 399, 959 N.W.2d 818.
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Cite as 312 Neb. 580(b) Acquittal on Theft Charge
Next, Vanderford argues that her acquittal on the charge of
theft by unlawful taking in the amount of $5,000 or more com-
pels the conclusion that the evidence was insufficient to con-
vict her of exploitation of a vulnerable adult. She contends the
verdicts are inconsistent and “do not square with each other,
nor with the facts of the case.” 30 There are two problems with
her argument.
First, the statutory elements to prove theft by unlawful tak-
ing are not the same as the elements to prove exploitation of
a vulnerable adult. 31 The crimes are separate and distinct. 32
Vanderford’s acquittal on the theft charge does not suggest
the evidence was somehow insufficient to convict her of the
exploitation charge.
[13] Moreover, a conviction on one count cannot be over-
turned merely because it is inconsistent with the fact finder’s
decision not to convict on another count. 33 Vanderford cannot
successfully challenge her conviction for exploitation of a vul-
nerable adult by arguing that it is inconsistent with the court’s
decision to acquit her of theft by unlawful taking in the amount
of $5,000 or more.
(c) Mens Rea
Vanderford also argues that the State failed to prove she
acted with sufficient mens rea or criminal intent to support
the felony offense of exploiting a vulnerable adult. As we
understand her argument, she does not dispute that her conduct
amounted to a breach of duty, but she argues that “for a breach
30
Brief for appellant at 14.
31
Compare Neb. Rev. Stat. § 28-511 (Reissue 2016) (statute defining theft
by unlawful taking) with §§ 28-386 and 28-358 (statutes defining exploita-
tion of vulnerable adult).
32
See, e.g., State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017) (defend­
ant convicted of theft by unlawful taking and exploiting vulnerable adult
arising from same set of facts).
33
See State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
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Cite as 312 Neb. 580of [fiduciary] duty to be criminal, the breach must be more
than an act of simple negligence.” 34 In other words, she claims
that “§§28-386 and [28-]358 cannot be interpreted to punish
a simple breach of fiduciary duty (negligence) as a felony.” 35
But § 28-386 does not punish a simple breach of fiduciary
duty. It criminalizes a “knowing and intentional act [that]
causes or permits a vulnerable adult or senior adult to be . . .
exploited.” 36 The breach of fiduciary relationship or duty is not
the required mens rea for the crime; it is just one of several
means by which to accomplish a “wrongful or unauthorized
taking, withholding, appropriation, conversion, control, or use
of money, funds, securities, assets, or any other property” of a
vulnerable adult or senior adult, and thus satisfy the definition
of “exploitation” under § 28-358.
Here, the evidence was sufficient to show beyond a reason-
able doubt that Vanderford’s knowing and intentional con-
duct in compensating herself from J.R.K.’s accounts, without
obtaining prior court approval, caused or permitted J.R.K. to
be exploited as that term is defined in § 28-358. There is no
merit to Vanderford’s suggestion that the State failed to prove
the requisite criminal intent to convict her of exploiting a vul-
nerable adult.
(d) Judge’s Sentencing Remarks
Vanderford asserts that remarks made by the trial court
during sentencing contradict or undermine the written guilty
verdict and require that the conviction be vacated. Before
addressing this assertion, we summarize the pertinent sentenc-
ing remarks.
After hearing allocution, but before imposing sentence, the
judge recounted some of the evidence presented at trial. In doing
so, the judge highlighted the evidence regarding the reporting
failures, accounting irregularities, billing irregularities, and
34
Brief for appellant at 22.
35
Id. at 21.
36
§ 28-386.
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Cite as 312 Neb. 580overdraft fees. He then said to Vanderford, “[Y]ou were at a
time in your life, I believe, where you weren’t running your
law practice as one might have expected. I think that’s just
so clear.” The judge then said, “[O]verall, I don’t believe that
there was the kind of financial exploitation — meaning, money
wrongfully taken from the trust [—] that maybe the State
does,” adding, “I don’t think it is possible to go through the
pennies and figure [it] out.”
Relying on these statements, Vanderford now argues that
her conviction should be vacated because “the Court’s own
words at sentencing established that the Court was clearly
wrong” 37 in finding her guilty of exploiting a vulnerable adult.
We disagree.
We see nothing about the court’s sentencing remarks, under-
stood in context, which contradicts, undermines, or calls into
doubt its prior verdict finding that Vanderford was guilty of
exploiting a vulnerable adult. We do not understand the court’s
remarks to suggest it was equivocating on that conviction in
any way. Rather, it appears the court was merely noting that it
did not necessarily agree with the State’s position regarding the
total sum of money that was wrongfully taken by Vanderford
while serving as J.R.K.’s guardian. Such an observation may
have been intended to explain why the court thought a sen-
tence of probation was appropriate for the Class IIIA felony
offense, or it may have been intended as an explanation for
why Vanderford was acquitted on the theft charge. Either way,
the statement had no impact on the conviction for exploiting a
vulnerable adult. We reject Vanderford’s claim that the sentenc-
ing remarks provide a basis to challenge the conviction.
3. Specific Conclusions of Law
Vanderford’s final argument on appeal is that the district
court “erred in failing to make sufficient conclusions of law
to support its guilty verdict.” Before addressing Vanderford’s
argument, we provide some additional background.
37
Brief for appellant at 21.
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Cite as 312 Neb. 580(a) Additional Facts
At the pretrial hearing during which Vanderford waived
her right to jury trial, Vanderford’s counsel brought up what
he described at the time as “proposals” for waiving jury
under which the court would “make some particular findings,
mostly conclusions of law.” The State expressed no objec-
tion to defense counsel’s proposal, and after some additional
discussion with counsel, the court indicated it was willing to
issue a written order “specify[ing] the material elements of the
offenses . . . like a jury instruction would set out the material
elements of the offense.” After this discussion, Vanderford
waived her right to jury trial, confirming on the record that she
understood her right to a jury trial, that she had conferred with
her counsel regarding that right, and that she was waiving that
right freely and voluntarily. The court accepted Vanderford’s
waiver and set the matter for a bench trial.
(b) Vanderford’s Argument
On appeal, Vanderford assigns that the court erred by “failing
to make sufficient conclusions of law to support its guilty ver-
dict as required by the express conditions of [Vanderford’s] jury
waiver.” During oral argument before this court, Vanderford’s
counsel described Vanderford’s jury waiver as “conditional”
and argued that if the court had not been willing to make spe-
cific written conclusions of law, Vanderford would “never have
waived jury.” As we will explain, this assignment of error has
no merit.
We begin by rejecting Vanderford’s suggestion that her
jury waiver decision was expressly conditioned on the court’s
agreement to make written conclusions of law. Vanderford
states that she “contemplated a jury waiver to focus on the
legal issues as to . . . the essential elements of the exploitation
offense and what mens rea or criminal intent element had to be
proven as to that charge.” 38 We understand this to suggest that
Vanderford and her counsel thought there would be a tactical
38
Id. at 15.
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Cite as 312 Neb. 580advantage to trying the case to the court because, unlike a jury
verdict, the court may be willing to make specific findings of
fact and conclusions of law that could help Vanderford focus
the issues on appeal. But we see nothing in the record suggest-
ing that Vanderford’s jury waiver was in any way conditional.
Despite Vanderford’s characterization, we are aware of no
statute or case law in Nebraska authorizing a defendant to
make a “conditional jury waiver” or authorizing a court to
accept one. But we see plenty of reasons for trial courts to be
especially cautious about making any statement or agreement
that might be perceived as inducing a defendant to waive a
constitutional right.
In People v. Collins, 39 for example, the California Supreme
Court found that a criminal defendant’s waiver of the right to
jury trial was invalid because, prior to accepting the waiver, the
trial court had informed the defendant that he would receive
some unspecified benefit if he waived a jury trial. On appeal,
the defendant argued the trial court’s statement amounted to
an improper inducement to waive the right to jury, and the
California Supreme Court agreed. It reasoned that “after hav-
ing been advised by the trial court that he would receive some
benefit of an undetermined nature to be determined by the
court at a later time, the defendant no longer could be said to
have voluntarily relinquished his right to jury trial.” 40 Thus,
even though the waiver colloquy was otherwise proper and
thorough, the trial court was found to have “acted in a manner
that was at odds with its judicial obligation to remain neutral
39
People v. Collins, 26 Cal. 4th 297, 27 P.3d 726, 109 Cal. Rptr. 2d 836(2001). See, also, 6 Wayne R. LaFave et al., Criminal Procedure § 22.1(h)
at 41-42 (4th ed. 2015) (“[s]ometimes a ‘jury waiver agreement,’ expressly
assuring the defendant of certain punishment concessions . . . is unobjec-
tionable so long as the negotiations were with the prosecutor rather than
the trial judge”).
40
Collins, supra note 39, 26 Cal. 4th at 311, 27 P.3d at 736, 109 Cal. Rptr.
2d at 847.
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Cite as 312 Neb. 580and detached in evaluating the voluntariness of the waiver,” 41
and the defendant’s conviction was reversed.
Notably, Vanderford has not assigned or argued that her
decision to waive jury was improperly induced or should
be deemed invalid. But even if she had, we see nothing in
the record suggesting that the court did, or said, anything to
induce Vanderford to waive her right to a jury trial or acted
in a manner inconsistent with its judicial obligation to remain
neutral and detached in evaluating the voluntariness of any
jury waiver. To the contrary, it was Vanderford’s counsel who
first asked whether the court would make written conclusions
of law. After clarifying the nature of defense counsel’s request
and confirming the State had no objection, the court agreed
to make written conclusions of law, which it had discretion
to do.
The crux of Vanderford’s argument is not that there was
something improper about the court’s willingness to make writ-
ten conclusions of law, but, rather, that the court’s conclusions
were insufficient. We disagree. As we read the trial court’s
written verdict, it made all of the findings and conclusions of
law requested by the defense and discussed by the parties dur-
ing the pretrial hearing. It identified the material elements of
the charge on which Vanderford was convicted, and it made
an express finding that the State had proved each material
element beyond a reasonable doubt. To the extent Vanderford
complains on appeal that the written verdict did not “define
the proper mens rea element of that offense” or “explain the
Court’s interpretation of the statute,” her arguments are simply
not supported by the record. 42
[14,15] More important, we question whether the failure to
make factual findings and conclusions of law could ever result
in reversible error in a case such as this. Although criminal
trial courts have discretion to make specific findings of fact
41
Id. at 309, 27 P.3d at 734, 109 Cal. Rptr. 2d at 845.
42
See brief for appellant at 16.
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Cite as 312 Neb. 580and conclusions of law in criminal cases tried to the bench,
the law does not compel it. In Nebraska, a trial judge sitting
without a jury is not required to articulate findings of fact or
conclusions of law in criminal cases. 43 In civil cases, parties
may ask a court to make specific findings under Neb. Rev.
Stat. § 25-1127 (Reissue 2016), but we have been clear that
§ 25-1127 has “‘no application to criminal proceedings.’” 44
So, although defendants are free to ask courts to make specific
findings or conclusions of law in criminal bench trials, they are
not entitled to compel such findings or conclusions as a mat-
ter of law, because they are discretionary. So even if the trial
court’s conclusions of law were not as detailed as Vanderford
would have liked, that does not provide a basis for revers-
ible error.
V. CONCLUSION
The State proved beyond a reasonable doubt that Vanderford,
while serving as a court-appointed guardian for a vulner-
able adult, knowingly and intentionally caused her ward to be
exploited in violation of § 28-386. Finding no merit to any of
the assignments of error raised on appeal, we affirm the judg-
ment of the district court.
Affirmed.
43
State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992). See, also, State
v. Cowan, 204 Neb. 708, 711, 285 N.W.2d 113, 115 (1979) (“[t]here is no
rule of law which requires the trial judge, acting as the trier of fact in a
criminal case, to make any special findings of fact”).
44
Franklin, supra note 43, 241 Neb. at 587, 489 N.W.2d at 557, quoting
State v. Lozano, 209 Neb. 772, 311 N.W.2d 529 (1981). See, also, State
v. Dake, 247 Neb. 579, 582, 529 N.W.2d 46, 48 (1995) (explaining that
§ 25-1127 “does not apply to criminal cases”).