State v. Johnson ( 2014 )

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Even if expert testimony was admissible, Harris’ expert
was wrong—the law does allow municipal ordinances to be
requested in the praecipe rather than introduced as exhibits at
the hearing.10
The district court did not err in not admitting the evidence
of Harris’ expert. Harris’ second assignment of error is with-
out merit.
VI. CONCLUSION
The decision of the district court is affirmed.
Affirmed.
10
See State v. Bush, supra note 7.
State of Nebraska, appellee, v.
Scott D. Johnson, appellant.
___ N.W.2d ___
Filed January 17, 2014. No. S-13-118.
1. Probation and Parole. The revocation of probation is a matter entrusted to the
discretion of a trial court.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
3. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with the constitutional requirements for proce-
dural due process presents a question of law.
4. Appeal and Error. An appellate court resolves questions of law independently of
the lower court’s conclusion.
5. Moot Question. A case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
6. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
7. Moot Question: Appeal and Error. Under the public interest exception to the
mootness doctrine, an appellate court may review an otherwise moot case if it
involves a matter affecting the public interest or when other rights or liabilities
may be affected by its determination.
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8. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adjudication for future guidance
of public officials, and (3) the likelihood of future recurrence of the same or a
similar problem.
9. Probation and Parole: Due Process. The minimum due process protections
required at a probation revocation hearing are as follows: (1) written notice
of the time and place of the hearing; (2) disclosure of evidence; (3) a neutral
factfinding body or person, who should not be the officer directly involved in
making recommendations; (4) opportunity to be heard in person and to present
witnesses and documentary evidence; (5) the right to cross-examine adverse
witnesses, unless the hearing officer determines that an informant would be sub-
jected to risk of harm if his or her identity were disclosed or unless the officer
otherwise specifically finds good cause for not allowing confrontation; and (6) a
written statement by the fact finder as to the evidence relied on and the reasons
for revoking the conditional liberty. In addition, the parolee or probationer has
a right to the assistance of counsel in some circumstances where the parolee’s
or probationer’s version of a disputed issue can fairly be represented only by a
trained advocate.
10. Probation and Parole: Proof. While the revocation of probation is a matter
entrusted to the discretion of a trial court, unless the probationer admits to a vio-
lation of a condition of probation, the State must prove the violation by clear and
convincing evidence.
11. Evidence: Words and Phrases. Clear and convincing evidence means that
amount of evidence which produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proved.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
Miller-Lerman, J.
NATURE OF CASE
In November 2007, Scott D. Johnson was convicted in the
district court for Lancaster County of abuse of a vulnerable
adult based on the financial exploitation of a relative. On
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February 1, 2008, he was sentenced to 3 years’ probation. On
April 13, 2010, the State filed a motion to revoke Johnson’s
probation on the basis that Johnson had allegedly assaulted
another individual, Martha Majocha. After a hearing, the dis-
trict court found that the State had proved by clear and con-
vincing evidence that Johnson had violated the terms and con-
ditions of his probation by assaulting Majocha, and therefore,
the district court revoked Johnson’s probation and sentenced
him to 1 to 2 years’ imprisonment with 26 days’ credit for
time served. Johnson appeals the order revoking his probation.
We affirm.
STATEMENT OF FACTS
In November 2007, Johnson was convicted of abuse of a
vulnerable adult, a Class IIIA felony, and the district court
sentenced Johnson to 3 years’ probation on February 1, 2008.
The conviction of abuse of a vulnerable adult was based on
the financial exploitation of Johnson’s step-great-grandmother.
Johnson appealed the conviction and sentence, and the dis-
trict court stayed the order of probation during the pendency
of the appeal. The Nebraska Court of Appeals affirmed the
conviction and sentence in a memorandum opinion filed on
February 3, 2009, in case No. A-08-202. We denied Johnson’s
petition for further review. On April 20, the district court filed
an “Order of Probation” reinstating Johnson’s sentence of 3
years’ probation.
On April 13, 2010, the State filed a motion to revoke
Johnson’s probation, alleging that he had failed “to refrain
from unlawful or disorderly conduct or acts injurious to oth-
ers.” The basis for the motion to revoke probation was the
alleged physical assault of Majocha by Johnson on March
18, 2010. Johnson was living with Majocha at the time of the
alleged assault.
On January 28, 2011, Johnson filed a motion to discharge
the motion to revoke probation on the bases that the matter
was not given prompt consideration pursuant to Neb. Rev. Stat.
§ 29-2267 (Reissue 2008) and that his constitutional rights to
a speedy trial and due process were violated. The district court
denied Johnson’s motion to discharge, finding that the matter
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had been continued at Johnson’s request and that Johnson had
waived his right to a speedy “trial.” Johnson appealed, and in
case No. A-11-285, the Court of Appeals sustained the State’s
motion for summary dismissal on November 15, 2011, stating
that an order denying a motion to discharge in probation revo-
cation proceedings is not a final, appealable order. We denied
Johnson’s petition for further review.
After the mandate from the Court of Appeals was returned,
the district court conducted an evidentiary hearing on the
motion to revoke probation. The hearing was conducted over 2
days, on October 16 and November 21, 2012. It is the outcome
of this probation revocation hearing which gives rise to the
instant appeal.
At the probation revocation hearing, it was learned that
Majocha had died on January 2, 2012, and thus she was not
present at the hearing. On October 16, the State offered,
over Johnson’s objection, exhibit 20, which was a copy of an
obituary for Majocha. The district court reserved its ruling on
exhibit 20, and ultimately, it was not received into evidence.
Nevertheless, on November 21, the district court stated that
“the State [had] made a showing that . . . Majocha is dead”
and that she was “simply unavailable to testify because of
her death.”
During the parties’ opening statements at the hearing on
October 16, 2012, the State argued that State v. Clark, 8 Neb.
App. 525, 598 N.W.2d 765 (1999), and State v. Shambley, 281
Neb. 317, 795 N.W.2d 884 (2011), provide that the rules of
evidence do not apply to a probation revocation proceeding.
The district court then stated that
the Court of Appeals and the Supreme Court have made
it clear that ordinarily in a motion to revoke probation
the defendant has a right to face and confront and cross-
examine witnesses, unless the Court makes a finding of
good cause as to why the defendant should not have the
right to cross-examine and to face and confront witnesses
against the defendant.
Both the State and Johnson agreed with the district court’s
characterization of the law.
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Johnson further asserted that § 29-2267 provides that the
probationer shall have the right to hear and “confront” the evi-
dence against him. Section 29-2267 provides:
Whenever a motion or information to revoke proba-
tion is filed, the probationer shall be entitled to a prompt
consideration of such charge by the sentencing court. The
court shall not revoke probation or increase the require-
ments imposed thereby on the probationer, except after a
hearing upon proper notice where the violation of proba-
tion is established by clear and convincing evidence. The
probationer shall have the right to receive, prior to the
hearing, a copy of the information or written notice on
the grounds on which the information is based. The pro-
bationer shall have the right to hear and controvert the
evidence against him, to offer evidence in his defense and
to be represented by counsel.
(Emphasis supplied.)
The State then called Officer Chris Schamber to testify.
Officer Schamber testified that he had been on duty on March
18, 2010, and that on that day, he was called to the hospital to
speak with Majocha regarding her injuries. Officer Schamber
testified that at the hospital, he observed Majocha’s inju-
ries, specifically bruising on her breasts and shins. The State
then questioned Officer Schamber regarding statements that
Majocha had made. Johnson objected on the grounds that
the statements were inadmissible hearsay and that because
Majocha was not subject to cross-examination, admission of
the statements would be a violation of Johnson’s constitutional
rights to due process and confrontation. The district court took
Johnson’s objection under advisement and continued the hear-
ing to November 21, 2012.
The hearing resumed on November 21, 2012, and Officer
Schamber resumed his testimony. He testified that he taped his
interview with Majocha using a microcassette recorder. The
State asked Officer Schamber to testify as to what Majocha
told him during the interview. Johnson again objected based
on hearsay and asserted that admission of the evidence would
violate his constitutional rights to due process and confron-
tation. Johnson also argued that the State had not made a
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showing of good cause as to why Johnson should be denied
his right to confront and cross-examine, as is required by case
law and § 29-2267.
The district court granted Johnson a continuing objection
and allowed Officer Schamber to testify. Officer Schamber
testified that Majocha said that she and Johnson lived together
and that Johnson had caused her injuries over the course of
approximately 3 months. Majocha stated that during those
3 months, Johnson would injure various parts of her body,
including her shins and breasts. Majocha stated that Johnson
had caused the injuries to her shins by kicking her while he
was wearing a pair of cowboy boots. She further stated that
Johnson had caused the injuries to her breasts by grabbing
them and twisting them. Majocha also told Officer Schamber
that she and Johnson were not sexually intimate, but that they
did sleep in the same bed.
Officer Schamber testified that he took photographs of
Majocha’s injuries, and the court received the photographs
into evidence over Johnson’s objection. Officer Schamber then
testified that after conducting the interview with Majocha, he
arrested Johnson, giving rise to a separate criminal case not
otherwise relevant to the instant case involving revocation of
probation in the matter wherein his relative was the victim.
Officer Schamber stated that Johnson admitted that he and
Majocha lived together.
The State then called Sgt. Tracy Graham, who had met
with Majocha at the hospital within days following the initial
report by Officer Schamber. Sergeant Graham testified that she
observed bruising on several parts of Majocha’s body, including
her breasts and shins. Sergeant Graham interviewed Majocha
and made an audio and visual DVD recording of the interview.
The State offered the DVD recording and a transcript of the
recording into evidence, and Johnson objected. The district
court reserved its ruling on the objection and granted Johnson
a continuing objection. The district court stated that it would
take the matter of the objection under advisement. Sergeant
Graham was excused, and the State stated that it did not have
any additional evidence. The district court then took a recess to
consider Johnson’s objections.
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Following the recess, the district court overruled Johnson’s
objections. The district court stated that it found that the State
showed good cause to allow the hearsay statements into evi-
dence because Majocha was unavailable due to her death. The
district court judge stated:
The Court has reviewed the evidence and the relevant
case law. I am going to make a finding consistent with
[State v. Clark, 8 Neb. Ct. App. 525, 598 N.W.2d 765 (1999),]
and [State v. Shambley, 281 Neb. 317, 795 N.W.2d 884
(2011)], and other relevant case law, that the State has
made a showing that . . . Majocha is dead, and I am
going to make a finding that, that constitutes good cause
for denying [Johnson] the right of confrontation at this
hearing. Obviously, she’s simply unavailable to testify
because of her death.
I am, therefore, going to receive each of the exhibits
. . . and consider her statements to Officer Schamber, as
well as her statements to [Sergeant] Graham, and overrule
[Johnson’s] objections to the evidence.
The district court also stated that it found the hearsay state-
ments to be “reliable and trustworthy” because they were
corroborated by the photographs that were received into evi-
dence depicting Majocha’s injuries and by Johnson’s state-
ments to Officer Schamber that Johnson lived with Majocha.
The defense rested without offering additional evidence at
this time.
The district court then stated on the record that it found that
the State had proved by clear and convincing evidence that
Johnson had violated the terms and conditions of his probation.
The court stated:
The Court does find by clear and convincing evidence
that [Johnson] did violate the terms and conditions of his
probation as alleged in the Motion to Revoke Probation.
As indicated previously . . . the rules of evidence do not
apply in a revocation of probation proceeding, subject to
case law regarding confrontation rights. And I previously
made the finding consistent with [State v. Clark, supra,]
and [State v. Shambley, supra], that the State has shown
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good cause why [Johnson] is denied his confrontation
right, that is [Majocha] has died.
Again, I find that the statements made by [Majocha]
to Officer Schamber and [Sergeant] Graham are cor-
roborated. They’re corroborated by the photographs and
they’re corroborated by [Johnson’s] statements that he did
live with . . . Majocha, both at the address where he was
arrested, and then at a previous address. The statements
with [Majocha] are consistent with the injuries observed
by the officers and as depicted in the photographs. I do
find corroboration for those statements.
I believe the statements are trustworthy and reliable,
even if they are not — don’t meet that legal standard,
nevertheless, I find that [the] statements are corrobo-
rated. And I find that, based on the evidence presented,
that the State has proven by clear and convincing evi-
dence that [Johnson] did violate the terms and conditions
of his probation as alleged in the Motion to Revoke
Probation.
After the district court stated its findings, Johnson was given
permission to withdraw his rest and offered an exhibit con-
taining police reports regarding an alleged sexual assault that
Majocha had reported to the police in October 2009 involving
a different assailant. Johnson argued that the reports cast doubt
on Majocha’s credibility. The district court received the exhibit
into evidence.
The district court then restated its finding that the State had
proved by clear and convincing evidence that Johnson violated
the terms and conditions of his probation, and the court set the
matter for sentencing. On January 18, 2013, the district court
filed an order that sentenced Johnson to 1 to 2 years’ imprison-
ment with 26 days’ credit for time served.
Johnson appeals.
ASSIGNMENTS OF ERROR
Johnson assigns, restated, that the district court erred when
it (1) received into evidence hearsay statements of an unavail-
able witness at the hearing on the State’s motion to revoke
Johnson’s probation, in violation of the rules of evidence and
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constitutional rights to due process and confrontation, and (2)
found that the State had proved by clear and convincing evi-
dence that Johnson violated a term of probation.
STANDARDS OF REVIEW
[1,2] The revocation of probation is a matter entrusted to
the discretion of a trial court. State v. Schreiner, 276 Neb. 393,
754 N.W.2d 742 (2008). A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right
and denying a just result in matters submitted for disposi-
tion. Id. See, also, State v. Ash, 286 Neb. 681, 838 N.W.2d
273 (2013).
[3,4] The determination of whether the procedures afforded
an individual comport with the constitutional requirements
for procedural due process presents a question of law. State v.
Watson, 285 Neb. 497, 827 N.W.2d 507 (2013). An appellate
court resolves questions of law independently of the lower
court’s conclusion. See State v. Leibel, 286 Neb. 725, 838
N.W.2d 286 (2013).
ANALYSIS
The State sought to revoke Johnson’s probation on the basis
that he failed to refrain from unlawful or disorderly conduct or
acts injurious to others, in violation of the terms of his proba-
tion. The incident upon which the revocation was proposed
was Johnson’s alleged assault of Majocha. After an evidentiary
hearing, probation was revoked. Johnson claims that he was
denied his right to due process and his right of confrontation
under the Sixth Amendment and that the evidence was insuf-
ficient. We find no merit to his assignments of error.
[5-8] As an initial matter, we note that at oral argument, it
was suggested that Johnson has been released from confine-
ment and that as a result, this case has become moot. We have
explained mootness and our ability to review a moot issue
as follows:
A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a
legally cognizable interest in the litigation’s outcome.
Although mootness does not prevent appellate jurisdiction,
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it is a justiciability doctrine that can prevent courts from
exercising jurisdiction.
But under the public interest exception, we may review
an otherwise moot case if it involves a matter affecting
the public interest or when other rights or liabilities may
be affected by its determination. And when determining
whether a case involves a matter of public interest, we
consider (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adju-
dication for future guidance of public officials, and (3)
the likelihood of future recurrence of the same or a simi-
lar problem.
Evertson v. City of Kimball, 278 Neb. 1, 7, 767 N.W.2d 751,
758 (2009) (citations omitted). See, also, In re Interest of
Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
This appeal presents valid reasons for applying the public
interest exception. In certain of their appellate assertions, the
parties refer to the Sixth Amendment right to confrontation,
thus suggesting that the Sixth Amendment applies to proba-
tion revocation proceedings. Probation revocation proceed-
ings are not criminal prosecutions, and although due process
rights apply to probation revocation proceedings, the Sixth
Amendment does not. We believe authoritative guidance is
warranted on the issue of constitutional “confrontation” as that
concept relates to probation revocation hearings. Accordingly,
this case falls within the public interest exception, and we con-
sider the appeal.
[9] Section 29-2267 provides in relevant part that during
probation revocation proceedings, “the probationer shall have
the right to hear and controvert the evidence against him, to
offer evidence in his defense and to be represented by coun-
sel.” Relying on U.S. Supreme Court cases, we have described
the minimum due process protections required at a probation
revocation hearing as follows:
(1) written notice of the time and place of the hear-
ing; (2) disclosure of evidence; (3) a neutral factfinding
body or person, who should not be the officer directly
involved in making recommendations; (4) opportu-
nity to be heard in person and to present witnesses and
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documentary evidence; (5) the right to cross-examine
adverse witnesses, unless the hearing officer determines
that an informant would be subjected to risk of harm if
his or her identity were disclosed or unless the officer
otherwise “‘specifically finds good cause for not allowing
confrontation’”; and (6) a written statement by the fact
finder as to the evidence relied on and the reasons for
revoking the conditional liberty. In addition, the parolee
or probationer has a right to the assistance of counsel in
some circumstances where the parolee’s or probationer’s
version of a disputed issue can fairly be represented only
by a trained advocate.
State v. Shambley, 281 Neb. 317, 327, 795 N.W.2d 884, 893
(2011) (citations omitted).
Under Neb. Rev. Stat. § 27-1101(4)(b) (Reissue 2008), the
formal rules of evidence do not apply to a probation revocation
hearing. Section 27-1101 states:
(4) The [Nebraska Evidence] [R]ules, other than those
with respect to privileges, do not apply in the follow-
ing situations:
....
(b) Proceedings for extradition or rendition; preliminary
examinations or hearings in criminal cases; sentencing or
granting or revoking probation; issuance of warrants for
arrest, criminal summonses, and search warrants; and
proceedings with respect to release on bail or otherwise.
In areas where the formal rules of evidence do not apply, we
nevertheless take guidance from the rules. E.g., In re Interest of
Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007) (stat-
ing that Nebraska Evidence Rules do not apply in cases involv-
ing termination of parental rights but serve as guidepost).
The foregoing framework applicable to a probation revoca-
tion proceeding requires due process, but it is settled law that a
“[p]robation revocation . . . is not a stage of a criminal prosecu-
tion.” Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1973). We have recognized the foregoing
principles in Shambley, supra. We have also noted in Shambley
that in view of this framework, a probation revocation hear-
ing should be “‘flexible enough to consider evidence . . . that
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would not be admissible in an adversary criminal trial.’” Id. at
327, 795 N.W.2d at 893 (quoting Morrissy v. Brewer, 408 U.S.
471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)).
Johnson claims that the district court erred when it received
and considered the hearsay statements of Majocha as recited
by Officer Schamber and Sergeant Graham and the associated
DVD evidence. He refers us to the exceptions to the hearsay
rule found in Neb. Rev. Stat. § 27-804 (Reissue 2008) and con-
tends that although Majocha was unavailable, the statements
were not reliable and thus not admissible under any exception
to the rule excluding hearsay. He contends that he was denied
his “right to confront and to cross-examine” Majocha. Brief for
appellant at 20.
As noted, the formal rules of evidence do not apply to pro-
bation revocation hearings. § 27-1101(4)(b). But admission
of evidence at a probation revocation hearing is not limitless.
Our cases have previously considered a court’s reliance on
hearsay evidence in parole, probation, and similar hearings.
E.g., State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975),
overruled on other grounds, State v. Kramer, 231 Neb. 437,
436 N.W.2d 524 (1989); State v. Clark, 8 Neb. Ct. App. 525, 598
N.W.2d 765 (1999). We have observed that even though the
evidentiary rules are relaxed, it is inadvisable for a court to
rely solely on unsubstantiated hearsay. See State v. Shambley,
supra. However, where, as in this case, the unavailability of a
witness is shown and the court finds indicia of reliability and
corroboration of the hearsay evidence through other evidence,
good cause has been shown and the court may rely on the hear-
say evidence in the absence of cross-examination. We believe
the district court followed these established considerations in
this case and did not err when it received and credited the hear-
say statements of Majocha.
Johnson further argues that admission of Majocha’s hear-
say statements to the effect that Johnson assaulted her denied
him his Sixth Amendment right to confrontation. The appel-
late arguments presented to us couched in the language of
the Sixth Amendment guarantee of the right to confront wit-
nesses inappropriately elevate the current probation revocation
proceedings. Section 29-2267 affords a probationer a right to
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“controvert” the evidence against him or her. Case law affords
him or her due process as described above. But probation
revocation proceedings are not criminal prosecutions, and the
statutory right to controvert evidence is not the equivalent of
the Sixth Amendment right to confront a witness.
Recent legal literature and case law are replete with discus-
sion of the relevance of the Sixth Amendment’s confrontation
guarantee as it pertains to probation revocation proceedings.
E.g., Peters v. State, 984 So. 2d 1227 (Fla. 2008) (cases col-
lected); Esther K. Hong, Friend or Foe? The Sixth Amendment
Confrontation Clause in Post-Conviction Formal Revocation
Proceedings, 66 SMU L. Rev. 227 (2013). Much of the dis-
cussion is triggered by the case of Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), in
which the U.S. Supreme Court generally held that an out-of-
court testimonial statement of an unavailable declarant is not
admissible at a criminal trial unless a defendant had a prior
opportunity to cross-examine the declarant. If these require-
ments are not satisfied, the Sixth Amendment Confrontation
Clause requires exclusion of the evidence. Since Crawford
was decided, the majority of jurisdictions have held that
Crawford concerns only Sixth Amendment confrontation rights
in criminal prosecutions and that because parole or probation
revocation proceedings are not criminal prosecutions, neither
Crawford nor the Sixth Amendment Confrontation Clause
applies to parole or probation revocation proceedings. See
Peters v. State, supra.
We agree with the majority of courts which have concluded
that the Sixth Amendment’s confrontation guarantee does
not apply to probation revocation proceedings. The “[c]riti-
cal . . . distinction between a criminal prosecution at trial,
during which a defendant enjoys the protections of the Sixth
Amendment, and a [probation] revocation hearing is the fact
that the accused at trial awaits a determination of guilt or
innocence.” Peters v. State, 984 So. 2d at 1231. The full range
of constitutional rights available to an individual accused of a
crime are not available in a probation revocation hearing. See,
e.g., Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136,
79 L. Ed. 2d 409 (1984) (reiterating that there is no right
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to jury trial before probation is revoked). To the extent that
Johnson claims he was denied a Sixth Amendment constitu-
tional right of confrontation at his probation revocation hear-
ing, we reject this assignment of error. It logically follows that
a Crawford analysis is inapplicable to probation revocation
evidentiary matters.
[10,11] Johnson also contends that the evidence was insuf-
ficient to revoke his probation. We reject this argument. While
the revocation of probation is a matter entrusted to the discre-
tion of a trial court, unless the probationer admits to a violation
of a condition of probation, the State must prove the violation
by clear and convincing evidence. State v. Clark, 8 Neb. Ct. App.
525, 598 N.W.2d 765 (1999). See, also, § 29-2267. Clear and
convincing evidence means that amount of evidence which
produces in the trier of fact a firm belief or conviction about
the existence of a fact to be proved. R & B Farms v. Cedar
Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011). We have
determined above that the statements of Majocha to the effect
that Johnson assaulted her were admissible. We need not repeat
the other graphic evidence here. The district court determined
that the evidence clearly and convincingly shows that Johnson
acted in a manner that violated the terms of his probation in
that, at a minimum, he failed to refrain from acts injurious to
others. We find no error in this determination.
CONCLUSION
By application of the public interest exception to the moot-
ness doctrine, this case presents an opportunity to consider the
relationship of the Sixth Amendment confrontation guarantee
and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), as they relate to probation revoca-
tion proceedings. Because probation revocation proceedings
are not criminal prosecutions, these rights do not apply, but
the probationer is entitled to due process and an opportunity to
controvert the evidence against him or her. The district court
did not err when it revoked Johnson’s probation. Accordingly,
we affirm.
Affirmed.
Cassel, J., not participating.