In re Interest of Xandria P. , 311 Neb. 591 ( 2022 )


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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    IN RE INTEREST OF XANDRIA P.
    Cite as 
    311 Neb. 591
    In re Interest of Xandria P., a child
    under 18 years of age.
    State of Nebraska, appellee, v.
    Dale A., appellant.
    ___ N.W.2d ___
    Filed May 13, 2022.     No. S-21-500.
    1. Juvenile Courts: Evidence: Appeal and Error. An appellate court
    reviews juvenile cases de novo on the record and reaches its conclu-
    sions independently of the juvenile court’s findings; however, when the
    evidence is in conflict, an appellate court may consider and give weight
    to the fact that the trial court observed the witnesses and accepted one
    version of the facts over the other.
    2. Evidence: Appeal and Error. In a de novo review, an appellate court
    disregards inadmissible or improper evidence.
    3. Juvenile Courts: Evidence: Appeal and Error. While reviewing a
    juvenile proceeding de novo on the record, an appellate court consid-
    ers whether the record establishes by a preponderance of the evidence
    that a juvenile is adjudicated under 
    Neb. Rev. Stat. § 43-247
    (3)(a)
    (Reissue 2016).
    4. Rules of Evidence: Hearsay. A declarant’s out-of-court statement
    offered for the truth of the matter asserted is inadmissible unless it falls
    within a definitional exclusion or statutory exception.
    5. ____: ____. Neb. Evid. R. 803(3), 
    Neb. Rev. Stat. § 27-803
    (3) (Reissue
    2016), is based on the notion that a person seeking medical attention
    will give a truthful account of the history and current status of his or her
    condition in order to ensure proper treatment.
    6. Rules of Evidence: Hearsay: Sexual Assault: Minors. Statements
    made by a child victim of sexual abuse to a forensic interviewer in the
    chain of medical care may be admissible under Neb. Evid. R. 803(3),
    
    Neb. Rev. Stat. § 27-803
    (3) (Reissue 2016), even though the interview
    has the partial purpose of assisting law enforcement’s investigation of
    the crimes.
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    7. Rules of Evidence: Hearsay. Whether a statement was both taken
    and given in contemplation of medical diagnosis or treatment is a
    factual finding made by the court in determining the admissibility of
    the evidence under Neb. Evid. R. 803(3), 
    Neb. Rev. Stat. § 27-803
    (3)
    (Reissue 2016).
    8. Juvenile Courts: Evidence: Appeal and Error. In a juvenile case,
    just as in a civil case, the admission or exclusion of evidence is not
    reversible error unless it unfairly prejudiced a substantial right of the
    complaining party.
    9. Juvenile Courts: Jurisdiction: Parental Rights. The purpose of the
    adjudication phase of a juvenile proceeding is to protect the interests of
    the child. The parents’ rights are determined at the dispositional phase,
    not at the adjudication phase.
    10. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in
    order for a juvenile court to assume jurisdiction of minor children under
    
    Neb. Rev. Stat. § 43-247
    (3)(a) (Reissue 2016), the State must prove the
    allegations of the petition by a preponderance of the evidence.
    Appeal from the County Court for Platte County: Frank J.
    Skorupa, Judge. Affirmed.
    Joel E. Carlson, of Stratton, DeLay, Doele, Carlson, Buettner
    & Stover, P.C., L.L.O., for appellant.
    Breanna D. Anderson-Flaherty, Deputy Platte County
    Attorney, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Following a trial, the county court for Platte County,
    Nebraska, sitting as a juvenile court, adjudicated Xandria P.
    as a juvenile under 
    Neb. Rev. Stat. § 43-247
    (3)(a) (Reissue
    2016). Xandria’s mother, Victoria M., did not appeal the adju-
    dication order, but Xandria’s stepfather, Dale A., did. Because
    we find no merit to Dale’s appeal, we affirm.
    BACKGROUND
    The State of Nebraska filed a petition alleging Xandria
    was a juvenile under § 43-247(3)(a), because Dale, who is
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    IN RE INTEREST OF XANDRIA P.
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    311 Neb. 591
    married to Xandria’s mother, Victoria, and lives with Xandria
    and Victoria, subjected Xandria to sexual abuse. The petition
    also alleged that Xandria had disclosed Dale’s sexual contact
    to Victoria and that Victoria had dismissed the disclosure. The
    court held a hearing in May 2021 and sustained the allegations
    in the petition.
    The trial record showed that Xandria, born in 2013, told her
    first grade teacher that “she had a secret with her dad” that she
    was not supposed to tell anyone about or he would go to jail.
    Xandria stated that they do things that “a boyfriend and girl-
    friend do.” Xandria’s teacher reported Xandria’s statements to
    an investigator with the Platte County sheriff’s office, Joseph
    Gragert. Gragert called the Nebraska Department of Health and
    Human Services (DHHS) child abuse hotline and completed a
    safety intake regarding Xandria with Sara Baustert, a DHHS
    child and family services specialist.
    Gragert and Baustert met with Xandria at her school. Baustert
    testified that a school official reported that “Xandria went up
    to a teacher and stated that she has a secret between her and
    her dad and that it’s something that boyfriends and girlfriends
    do and gestured towards her genital area.” The school official
    stated that Xandria refers to Dale as “dad,” noting that Dale
    lives in the home with Xandria and Victoria.
    Gragert and Baustert placed Xandria into the custody
    of DHHS and transported her to the Northeast Nebraska
    Child Advocacy Center (NNCAC) in Norfolk, Nebraska.
    Sarah Scheinost, a forensic interview specialist, conducted a
    recorded forensic interview of Xandria. During the interview,
    Scheinost explained that the NNCAC is part of a hospital net-
    work with doctors and nurses available to meet with Xandria.
    Scheinost also explained that it was important for Xandria
    to tell the truth, and Xandria agreed to do so. Xandria then
    disclosed that she and her “dad” had a secret for more than
    1 year whereon multiple occasions he would remove his and
    Xandria’s clothing and “put his thing that he uses to pee”
    in her “place that she uses to go pee.” Using her hands and
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    IN RE INTEREST OF XANDRIA P.
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    anatomical drawings, Xandria identified her vaginal area.
    Xandria referred to his penis as a “big, huge, thing” that he
    “uses to pee.” Xandria reported that on multiple times he
    had gotten on top of her while both were without clothing.
    Xandria reported that “her ‘[d]ad’ licked her in the vaginal
    area” and that she had disclosed this to Victoria on at least
    one occasion.
    The State, after filing the petition in this matter, requested
    a pretrial hearing on the admissibility of Xandria’s recorded
    interview. At that hearing, Scheinost provided testimony on
    behalf of the State to lay foundation for the admission of
    the recorded interview. Scheinost testified that she holds a
    bachelor’s degree in human service counseling and a master’s
    degree of science in education. Scheinost further testified that
    the NNCAC is located on the east campus of a medical facility.
    Scheinost indicated that the NNCAC provides forensic inter-
    views, medical examinations, and child advocacy. Scheinost
    explained that forensic interviews provide medical and thera-
    peutic care for the victim and allow for medical examination
    or continued therapy as possible followup treatment. Scheinost
    also testified that the recorded forensic interviews are con-
    ducted for medical purposes and can be used for purposes of
    medical diagnosis and treatment.
    On cross-examination, Scheinost admitted she had no medi-
    cal training and did not make a medical diagnosis. Scheinost
    also testified that law enforcement was involved in the matter
    both before and after the interview and that potential child
    abuse was being investigated. The court, over the hearsay
    objections of Dale and Victoria, ruled the interview admissible
    pursuant to the statutory exception regarding medical evi-
    dence under Neb. Evid. R. 803(3), 
    Neb. Rev. Stat. § 27-803
    (3)
    (Reissue 2016).
    At the adjudication hearing, Xandria did not testify, but
    her recorded interview was received into evidence, again over
    the objections of Dale and Victoria. Gragert testified about
    phone calls made by Dale to Victoria while Dale was in jail.
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    IN RE INTEREST OF XANDRIA P.
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    Gragert testified that Dale and Victoria spoke multiple times
    every day and that in certain calls, Dale had directed Victoria
    to tell Xandria to say that she lied, to tell her that he is in
    jail because of what she said, to tell her not to talk to any-
    body, and to tell her that she was assaulted by her biological
    father. In one call, Victoria stated to Dale that she may only
    get Xandria back for 1 day, to which Dale responded that
    “one day is enough to tell Xandria to keep her mouth shut.”
    Gragert testified that Victoria generally responded to Dale in
    the affirmative. Gragert testified that Xandria disclosed during
    the forensic interview that she once told Victoria about her
    sexual contact with Dale, and that Victoria stated that “[d]addy
    wouldn’t do that to you.”
    Victoria testified that Xandria did not disclose to her sexual
    contact with Dale. Victoria admitted that Dale has instructed
    her to tell Xandria things about the case and that Victoria
    generally responds to Dale in the affirmative. Victoria admit-
    ted that she had watched the forensic interview of Xandria
    and was aware of Xandria’s statements regarding Dale’s sex-
    ual contact.
    The court’s order of adjudication found that Xandria is a
    juvenile, under § 43-247(3)(a), who is abandoned by his or her
    parent, guardian, or custodian; who lacks proper parental care
    by reason of the fault or habits of his or her parent, guardian, or
    custodian; or whose parent, guardian, or custodian neglects or
    refuses to provide proper or necessary subsistence, education,
    or other care necessary for the health, morals, or well-being
    of such juvenile. The court found that the home environment
    created by Dale and Victoria was injurious to Xandria’s health,
    safety, morals, and well-being.
    ASSIGNMENTS OF ERROR
    Dale assigns, restated, that the court erred in (1) admitting
    the forensic interview into evidence over hearsay objections,
    (2) admitting other evidence over hearsay and relevance objec-
    tions, (3) finding sufficient evidence for an adjudication, and
    (4) overruling Dale’s motion to dismiss.
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    IN RE INTEREST OF XANDRIA P.
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    STANDARD OF REVIEW
    [1] An appellate court reviews juvenile cases de novo on the
    record and reaches its conclusions independently of the juve-
    nile court’s findings; however, when the evidence is in conflict,
    an appellate court may consider and give weight to the fact that
    the trial court observed the witnesses and accepted one version
    of the facts over the other. 1
    [2,3] Several legal principles control our de novo review
    of proceedings in the juvenile court. In a de novo review, an
    appellate court disregards inadmissible or improper evidence. 2
    While reviewing a juvenile proceeding de novo on the record,
    an appellate court considers whether the record establishes by
    a preponderance of the evidence that a juvenile is adjudicated
    under § 43-247(3)(a). 3
    ANALYSIS
    Evidentiary Objections
    Central to Dale’s appeal is his claim that the juvenile
    court erred in admitting hearsay and irrelevant evidence. To
    summarize, Dale argues that the court erred in admitting
    Xandria’s recorded forensic interview under rule 803(3); in
    allowing Gragert to testify about out-of-court statements made
    by Xandria, Xandria’s teacher, Dale, and Victoria; in admitting
    certified copies of Dale’s criminal charges; and in admitting
    safety and risk assessment documents concerning Xandria.
    [4] In regard to the forensic interview, a declarant’s
    out-of-court statement offered for the truth of the matter
    1
    See, In re Interest of Prince R., 
    308 Neb. 415
    , 
    954 N.W.2d 294
     (2021); In
    re Interest of Elainna R., 
    298 Neb. 436
    , 
    904 N.W.2d 689
     (2017).
    2
    See, In re Interest of D.P.Y. and J.L.Y., 
    239 Neb. 647
    , 
    477 N.W.2d 573
    (1991); In re Interest of O.L.D. and M.D.D., 
    1 Neb. App. 471
    , 
    499 N.W.2d 552
     (1993), citing In re Interest of L.H. et al., 
    241 Neb. 232
    , 
    487 N.W.2d 279
     (1992).
    3
    See 
    id.
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    asserted is inadmissible unless it falls within a definitional
    exclusion or statutory exception. 4 Rule 803 provides:
    Subject to the provisions of section 27-403, the follow-
    ing are not excluded by the hearsay rule, even though the
    declarant is available as a witness:
    ....
    (3) Statements made for purposes of medical diag-
    nosis or treatment and describing medical history, or
    past or present symptoms, pain, or sensations, or the
    inception or general character of the cause or external
    source thereof insofar as reasonably pertinent to diagno-
    sis or treatment.
    [5-7] Rule 803(3) is based on the notion that a person
    seeking medical attention will give a truthful account of the
    history and current status of his or her condition in order to
    ensure proper treatment. 5 Statements made by a child vic-
    tim of sexual abuse to a forensic interviewer in the chain
    of medical care may be admissible under rule 803(3), even
    though the interview has the partial purpose of assisting law
    enforcement’s investigation of the crimes. 6 The fundamental
    inquiry to determine whether statements, made by a declar-
    ant who knew law enforcement was listening, had a medi-
    cal purpose is if the challenged statement has some value in
    diagnosis or treatment, because the patient would still have
    the requisite motive for providing the type of sincere and
    4
    State v. Jedlicka, 
    297 Neb. 276
    , 
    900 N.W.2d 454
     (2017).
    5
    
    Id.
     See, State v. Vaught, 
    268 Neb. 316
    , 
    682 N.W.2d 284
     (2004); Vacanti
    v. Master Electronics Corp., 
    245 Neb. 586
    , 
    514 N.W.2d 319
     (1994); State
    v. Dyer, 
    245 Neb. 385
    , 
    513 N.W.2d 316
     (1994); State v. Red Feather, 
    205 Neb. 734
    , 
    289 N.W.2d 768
     (1980). See, also, Morgan v. Foretich, 
    846 F.2d 941
     (4th Cir. 1988); United States v. Renville, 
    779 F.2d 430
     (8th Cir.
    1985); State v. Smith, 
    315 N.C. 76
    , 
    337 S.E.2d 833
     (1985); Gregory v.
    State, 
    56 S.W.3d 164
     (Tex. App. 2001).
    6
    Jedlicka, 
    supra note 4
    . See, Tilson v. Tilson, 
    307 Neb. 275
    , 
    948 N.W.2d 768
     (2020); Vaught, 
    supra note 5
    ; State v. Roenfeldt, 
    241 Neb. 30
    , 
    486 N.W.2d 197
     (1992).
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    reliable information that is important to that diagnosis and
    treatment. 7 Whether a statement was both taken and given in
    contemplation of medical diagnosis or treatment is a factual
    finding in determining the admissibility of the evidence under
    rule 803(3). 8
    Statements having a dual medical and investigatory purpose
    are admissible under rule 803(3), only if the proponent of the
    statements demonstrates that (1) the declarant’s purpose in
    making the statements was to assist in the provision of medical
    diagnosis or treatment and (2) the statements were of a nature
    reasonably pertinent to medical diagnosis or treatment by a
    medical professional. 9 Under rule 803(3), the admissibility of
    a victim’s statements in a recording is not distinct from the
    admissibility of the statements themselves. 10 The fundamental
    inquiry when considering a declarant’s intent is whether the
    statement was made in legitimate and reasonable contempla-
    tion of medical diagnosis or treatment. 11 Under rule 803(3), the
    appropriate state of mind of the declarant may be reasonably
    inferred from the circumstances; such a determination is neces-
    sarily fact specific. 12
    Dale argues there was no foundation to admit the foren-
    sic interview under rule 803(3), because the specialist who
    conducted the interview did not herself conduct a medical
    7
    See 
    id.
    8
    See, State v. Herrera, 
    289 Neb. 575
    , 
    856 N.W.2d 310
     (2014); State v. Vigil,
    
    283 Neb. 129
    , 
    810 N.W.2d 687
     (2012); Red Feather, 
    supra note 5
    ; Morfeld
    v. Weidner, 
    99 Neb. 49
    , 
    154 N.W. 860
     (1915); State v. Cheloha, 
    25 Neb. App. 403
    , 
    907 N.W.2d 317
     (2018); State v. Meduna, 
    18 Neb. App. 818
    ,
    
    794 N.W.2d 160
     (2011).
    9
    Jedlicka, 
    supra note 4
    . See, Tilson, 
    supra note 6
    ; State v. Dady, 
    304 Neb. 649
    , 
    936 N.W.2d 486
     (2019); Vigil, supra note 8; In re Interest of B.R. et
    al., 
    270 Neb. 685
    , 
    708 N.W.2d 586
     (2005); Cheloha, supra note 8.
    10
    Jedlicka, 
    supra note 4
    .
    11
    
    Id.
    12
    
    Id.
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    examination or render a medical diagnosis, nor did any other
    health care professional. Dale argues the sole purpose of the
    interview was criminal investigation.
    However, Dale’s argument is contrary to Nebraska law
    and this court’s precedents. Here, Scheinost testified that
    the NNCAC is located on the campus of a medical facility.
    Scheinost testified that the recorded forensic interview was
    conducted for a medical purpose and could be used for pur-
    poses of diagnosis and treatment. During the forensic inter-
    view, Scheinost told Xandria that the interview room is a safe
    room, where she could say what she wanted to say and use the
    words she wanted to use without getting into trouble. Scheinost
    told Xandria that NNCAC is part of a hospital, that doctors and
    nurses work there, and that after the interview, Xandria could
    speak with a doctor or nurse if she had any concerns about
    her body or health. Upon our de no review, we conclude that
    the testimony of Scheinost and the recorded interview itself
    provide adequate foundation for admitting Xandria’s recorded
    testimony under rule 803(3).
    Given our conclusion that the juvenile court properly admit-
    ted Xandria’s recorded interview, Dale’s remaining evidentiary
    arguments as to the admission of the out-of-court statements of
    Xandria’s teacher, Dale, and Victoria; the admission of certi-
    fied copies of Dale’s criminal charges; and the admission of
    the safety and risk assessments are irrelevant because Dale has
    failed to demonstrate that he was prejudiced as a result of the
    court’s evidentiary rulings.
    [8] This court has recently observed that in a juvenile case,
    just as in a civil case, the admission or exclusion of evidence
    is not reversible error unless it unfairly prejudiced a substan-
    tial right of the complaining party. 13 Moreover, when evaluat-
    ing Dale’s evidentiary objections, it is important to note that
    an appellate court does not consider inadmissible evidence
    13
    In re Interest of Vladimir G., 
    306 Neb. 127
    , 
    944 N.W.2d 309
     (2020).
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    in its de novo review of a juvenile proceeding. 14 Given the
    lack of demonstrated prejudice and the applicable standard
    of review which requires the exclusion of inadmissible evi-
    dence, Dale failed to show how the juvenile court’s other
    evidentiary rulings had any independent legal significance
    in the resolution of this matter. As such, Dale’s assignments
    of error concerning the improper admission of evidence are
    without merit.
    Sufficiency of Evidence
    [9,10] The purpose of the adjudication phase is to protect
    the interests of the child. 15 The parents’ rights are determined
    at the dispositional phase, not at the adjudication phase. 16 At
    the adjudication stage, in order for a juvenile court to assume
    jurisdiction of minor children under § 43-247(3)(a), the State
    must prove the allegations of the petition by a preponderance
    of the evidence. 17
    Dale postulates that the forensic interview was insufficient
    evidence because Xandria referred to “dad” and not “Dale.”
    Dale thus argues the interview failed to establish a positive
    identification. However, Dale’s assertion is refuted by the
    record, because Xandria consistently referred to “dad” as the
    man living in her home who is married to her mother. As such,
    we conclude that the State sustained the adjudication petition
    by a preponderance of the evidence. This assignment of error
    is without merit.
    14
    In re Interest of D.P.Y. and J.L.Y., supra note 2.
    15
    In re Interest of Brian B. et al., 
    268 Neb. 870
    , 
    689 N.W.2d 184
     (2004).
    16
    
    Id.
     See, also, In re Interest of Jeremy U. et al., 
    304 Neb. 734
    , 
    936 N.W.2d 733
     (2020); In re Interest of Justine J. et al., 
    286 Neb. 250
    , 
    835 N.W.2d 674
     (2013); In re Interest of Karlie D., 
    283 Neb. 581
    , 
    811 N.W.2d 214
    (2012); In re Interest of Sabrina K., 
    262 Neb. 871
    , 
    635 N.W.2d 727
    (2001); In re Interest of Kantril P. & Chenelle P., 
    257 Neb. 450
    , 
    598 N.W.2d 729
     (1999).
    17
    In re Interest of Brian B. et al., supra note 15.
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    Motion to Dismiss
    As a final matter, Dale argues the juvenile court lacked juris-
    diction over the petition, based on his allegation that the court
    did not enter a temporary custody order within 48 hours from
    the time Xandria was taken into custody, as required by 
    Neb. Rev. Stat. § 43-250
    (2) (Cum. Supp. 2020). Section 43-250(2)
    states in relevant part:
    When a juvenile is taken into temporary custody pursu-
    ant to subdivision (2), (7), or (8) of section 43-248, and
    not released under subdivision (1)(a) of this section, the
    peace officer shall deliver the custody of such juvenile
    to [DHHS] which shall make a temporary placement of
    the juvenile in the least restrictive environment consistent
    with the best interests of the juvenile as determined by
    [DHHS]. . . . If a court order of temporary custody is not
    issued within forty-eight hours of taking the juvenile into
    custody, the temporary custody by [DHHS] shall termi-
    nate and the juvenile shall be returned to the custody of
    his or her parent, guardian, custodian, or relative.
    Here, the record refutes Dale’s argument, because a tempo-
    rary custody was issued within 48 hours. On January 8, 2021,
    at approximately 3:30 p.m., Gragert placed Xandria into pro-
    tective custody and delivered her to the custody of DHHS. On
    January 9, at approximately noon, a Platte County judge signed
    a temporary ex parte placement order and emailed it to Gragert,
    DHHS personnel, and a deputy Platte County attorney.
    Moreover, Dale’s argument is inapposite to our jurispru-
    dence. In In re Interest of R.G., 18 we held the State’s fail-
    ure to comply with the statutory requirements relating to
    the entry of an ex parte temporary detention order does not
    deprive the juvenile court of jurisdiction. Additionally, in In re
    18
    See In re Interest of R.G., 
    238 Neb. 405
    , 
    470 N.W.2d 780
     (1991),
    disapproved on other grounds, O’Connor v. Kaufman, 
    255 Neb. 120
    , 
    582 N.W.2d 350
     (1998).
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    Interest of S.S.L., 19 we held that in the absence of direct statu-
    tory language to the contrary, failure to comply with the time
    limits imposed by § 43-250 did not mean that the juvenile
    court failed to acquire, or somehow lost, jurisdiction of the
    matter. As such, this assignment of error is without merit.
    CONCLUSION
    For the reasons stated herein, we affirm.
    Affirmed.
    19
    See In re Interest of S.S.L., 
    219 Neb. 911
    , 
    367 N.W.2d 710
     (1985).