State v. Dehning , 296 Neb. 537 ( 2017 )


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    STATE v. DEHNING
    Cite as 
    296 Neb. 537
    State of Nebraska,         appellee, v.
    Eddie H. Dehning,         appellant.
    ___ N.W.2d ___
    Filed April 27, 2017.    No. S-16-761.
    1.	 Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of witnesses, or reweigh the evidence; such matters
    are for the finder of fact. The relevant question for an appellate court
    is whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    2.	 Sentences: Appeal and Error. An appellate court will not disturb a
    sentence imposed within the statutory limits absent an abuse of discre-
    tion by the trial court.
    3.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    4.	 Sentences. When imposing a sentence, the sentencing court should cus-
    tomarily consider the defendant’s (1) age, (2) mentality, (3) education
    and experience, (4) social and cultural background, (5) past criminal
    record or record of law-abiding conduct, and (6) motivation for the
    offense, as well as (7) the nature of the offense and (8) the violence
    involved in the commission of the offense. However, the sentencing
    court is not limited to any mathematically applied set of factors.
    5.	 ____. The appropriateness of a sentence is necessarily a subjective
    judgment and includes the sentencing judge’s observation of the defend­
    ant’s demeanor and attitude and all the facts and circumstances sur-
    rounding the defendant’s life.
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    STATE v. DEHNING
    Cite as 
    296 Neb. 537
    Appeal from the District Court for Deuel County: Derek C.
    Weimer, Judge. Affirmed.
    Steven E. Elmshaeuser for appellant.
    Douglas J. Peterson, Attorney General, and Joe Meyer
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Eddie H. Dehning, the appellant, was charged with exploita-
    tion of a vulnerable adult and theft by unlawful taking. After
    a trial, the jury found Dehning guilty on both counts. The
    district court sentenced Dehning to imprisonment of 60 to 60
    months for the conviction of exploitation of a vulnerable adult
    and imprisonment of 5 to 10 years for the theft conviction,
    with the sentences to run consecutively. The sentences were
    also ordered to be served consecutively to Dehning’s sentences
    resulting from a separate criminal case. Dehning appeals.
    We affirm.
    STATEMENT OF FACTS
    On April 2, 2015, Dehning was charged by information
    with two counts: Count I was exploitation of a vulnerable
    adult, a Class IIIA felony, and count II was theft by unlaw-
    ful taking, a Class III felony. The information alleged that
    from approximately January 1, 2011, to December 31, 2013,
    Dehning had exploited a vulnerable adult, specifically his
    mother, Cora Bell Dehning (Cora Bell), and that he had stolen
    property from Cora Bell having an aggregate value of more
    than $1,500.
    Dehning pled not guilty to the charges, and a jury trial
    was held on April 25 and 26, 2016. The State called 10
    witnesses, including bank employees, members of Dehning
    and Cora Bell’s family, a physician’s assistant, the former
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    sheriff who investigated the case, and Julie Collins, Dehning’s
    ­ex-­girlfriend. Dehning testified in his own behalf.
    The evidence adduced at trial generally showed that Cora
    Bell and her husband had two children: Dehning and his
    sister. After Cora Bell’s husband retired in the early to mid-
    1980’s, they moved to Sidney, Nebraska. Cora Bell’s husband
    died in 1988, and after his death, Cora Bell continued to live
    independently in Sidney.
    Dehning became Cora Bell’s power of attorney in February
    2011. In June 2011, Cora Bell moved from Sidney to Big
    Springs, Nebraska, which was closer to where Dehning
    lived. After Cora Bell was found at her home unconscious in
    December 2012, she was moved to an assisted living facil-
    ity in February 2013. Later in 2013, Cora Bell was facing
    eviction from the assisted living facility, and in November
    2013, Marvin Remington, Cora Bell’s younger brother, and
    James Fraker, Cora Bell’s nephew, became Cora Bell’s powers
    of attorney.
    Many of the witnesses testified regarding the mental state
    of Cora Bell. Remington testified that in 2007, Cora Bell
    “started having a little bit of [a] mind problem like she wasn’t
    really thinking clearly like she always did before.” He testi-
    fied that in 2009, he noticed that Cora Bell would mix up
    her medications or forget to take them. James Fraker testified
    that in 2009 or 2010, he started to notice that Cora Bell was
    displaying signs of dementia. James Fraker stated that Cora
    Bell was repeating herself frequently and that by 2011, she
    was becoming forgetful and having a hard time carrying on
    a normal conversation. The former sheriff of Deuel County
    testified that he was informed by Dehning; James Fraker; and
    James Fraker’s wife, Paula Fraker, that Cora Bell was suffer-
    ing from dementia.
    Collins also testified regarding Cora Bell’s mental state.
    Collins testified that Cora Bell moved from Sidney to Big
    Springs so Dehning and Collins could check on her more
    easily. Collins stated that she would go to Cora Bell’s house
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    frequently to make sure Cora Bell took her medication. Collins
    testified that she was concerned about Cora Bell’s eating habits
    because she was losing a lot of weight and that she noticed
    “a decrease of her personal hygiene.” Collins further stated
    that starting in 2011, Cora Bell would forget the names of
    Collins’ children.
    A physician’s assistant, Lisa Regier, testified that she had
    treated Cora Bell from October 2011 through June 2012.
    In October 2011, after Regier learned that Cora Bell would
    sometimes forget to take her medication, Regier ordered an
    MRI. On November 21, after receiving the results of the MRI,
    Regier informed Cora Bell that she had what appeared to be
    Alzheimer’s disease. Regier gave Cora Bell a “Mini-Mental
    Status Exam” on December 23, and based on the results of
    that examination, Regier determined that Cora Bell had mild or
    moderate Alzheimer’s disease. Regier prescribed two medica-
    tions to Cora Bell to slow the progression of the disease. On
    June 1, 2012, Regier met with Cora Bell again, and Regier
    testified that at that point, “it was obvious that the Alzheimer’s
    disease was [a]ffecting [Cora Bell’s] memory” and that it was
    “difficult for her to manage independently at that time.” Regier
    testified that although June 1 was the first time she really noted
    that it was difficult for Cora Bell to function independently,
    she had concerns about Cora Bell’s ability to care for herself
    beginning in November 2011.
    With respect to Cora Bell’s financial situation, the evi-
    dence adduced at trial showed that in 2013, other members of
    Cora Bell’s family became aware that she was facing eviction
    from her assisted living facility, and as a result, they became
    involved in Cora Bell’s financial affairs. As noted above, in
    November 2013, Remington and James Fraker became Cora
    Bell’s powers of attorney. At trial, the State offered and the
    court received the bank records for two of Cora Bell’s accounts
    and two of Dehning’s accounts.
    After Remington and James Fraker became Cora Bell’s
    powers of attorney, they began examining Cora Bell’s bank
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    records for the time that Dehning had been her power of attor-
    ney. Remington testified that in examining the bank records,
    he noticed a debit card was frequently used, but that Cora Bell
    “hardly ever used a debit card.” Remington further stated that
    Dehning had
    opened a bank account at [a bank] in Big Springs for
    her and he was always transferring money around but he
    might take $2,500 out of [a] bank in Sidney . . . and he’d
    move it to Big Springs but when he put the money in the
    bank in Big Springs it would be usually [$]2,000 depos-
    ited and [$]500 missing.
    Remington further testified that Dehning had rented out Cora
    Bell’s house located in Sidney but that very little of the rent
    money was deposited into Cora Bell’s bank accounts.
    James Fraker testified that after becoming power of attorney
    along with Remington, they both noticed that Cora Bell had
    very little money in her bank accounts. James Fraker testified
    that after further investigation, “it was kind of evident that
    [Dehning] had been taking some of [Cora Bell’s] money and
    spending it.” Similar to Remington’s testimony, James Fraker
    testified that Dehning would transfer money between Cora
    Bell’s bank account in Sidney and her account in Big Springs
    and that
    during the transfer he would take cash out, like I say if
    he took $1,500 out of [the] bank in Sidney and transfer
    [sic] it over to the bank in Big Springs maybe [$]1,200 or
    $1,100 would show up and the rest would be taken out.
    You could see on the deposit slip there would always be a
    deduction out for cash.
    James Fraker further testified that Cora Bell’s debit card was
    used and automated teller machine withdrawals occurred
    in areas of Nebraska to which Cora Bell would not have
    traveled.
    Paula Fraker testified that she examined Cora Bell’s bank
    accounts along with Remington and James Fraker. She testi-
    fied that she prepared spreadsheets regarding Cora Bell’s
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    finances to show the investigators involved in this case. Paula
    Fraker testified that in examining Cora Bell’s bank accounts,
    she made the following observations: Dehning would pay his
    utility bill from Cora Bell’s account, the first time there was
    use of a debit card from Cora Bell’s account was after Dehning
    became power of attorney, there was an instance when $1,500
    went missing from Cora Bell’s bank accounts, the $700
    monthly rent check for Cora Bell’s house in Sidney was being
    deposited into Dehning’s account, and many other transactions
    that Paula Fraker found suspicious, including a check made
    out to the “Keith Co. Treasurer” for $609.12 when Cora Bell
    did not own any property in Keith County, Nebraska.
    Numerous voluminous bank records from two of Cora
    Bell’s accounts and two of Dehning’s accounts were received
    in evidence. These formed part of the basis on which the State
    relied to prove the amount of the theft alleged in count II.
    Collins also testified regarding Cora Bell’s finances. She
    stated that after receiving the rent for Cora Bell’s house
    in Sidney, Dehning would deposit the money into his bank
    account. Collins further testified that Dehning once purchased
    a shed to be used at his house and that he paid for it with a
    check drawn on Cora Bell’s bank account. Collins also testi-
    fied that Dehning purchased many guns and electronics in 2012
    and 2013.
    After the State concluded the presentation of its case in
    chief, Dehning moved for a “directed verdict.” The district
    court overruled Dehning’s motion.
    Dehning testified in his own behalf. Dehning generally tes-
    tified that he had Cora Bell’s permission and consent for all
    of the financial transactions that were being questioned. He
    testified: “I had permission to do anything I wanted to do.”
    Dehning also testified that Cora Bell was present with him for
    many of the automated teller machine withdrawals that were
    at issue.
    As a specific example of Cora Bell’s permission and to
    rebut Collins’ testimony, Dehning testified that he had Cora
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    Bell’s permission to install the shed that he used at his house.
    In this regard, Dehning testified that Cora Bell initially stated
    she wanted a shed to store equipment that would not fit in her
    garage, so he ordered a shed. Dehning stated on direct testi-
    mony that after he explained to Cora Bell that a spruce tree, an
    oak tree, and a fence would need to be removed to install the
    shed, Cora Bell said to Dehning, “you’re not cutting up those
    trees for a storage shed. And I already ordered the storage
    she[d]. . . . Well, take it to your house because it’s not coming
    here if we’ve got to tear the hell out of everything.”
    Regarding his defense that he had Cora Bell’s consent,
    Dehning testified that Cora Bell had specifically told him that
    “any of her money was [Dehning’s] money.” He also testi-
    fied that Cora Bell did not have a good relationship with her
    daughter, and Dehning stated that Cora Bell told him: “[Y]ou
    don’t be leaving money in the bank, you keep that money
    moving so your sister don’t get it. It’s your money.”
    After the trial concluded, the jury returned a verdict of
    guilty on both counts, with the theft valued at $32,447.28.
    A sentencing hearing was held on July 11, 2016. The
    district court sentenced Dehning to imprisonment of 60 to
    60 months for the conviction of exploitation of a vulner-
    able adult and to imprisonment of 5 to 10 years for the theft
    conviction, with the sentences to run consecutively. The
    sentences were also ordered to be served consecutively to
    Dehning’s previous sentences resulting from a separate crimi-
    nal case in Keith County. Dehning was not given credit for
    time served, because he was in prison on the separate previ-
    ous criminal case.
    Dehning appeals.
    ASSIGNMENTS OF ERROR
    Dehning claims that his convictions should be reversed
    because there was insufficient evidence to prove he was guilty
    beyond a reasonable doubt and the district court erred by
    imposing excessive sentences.
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    STANDARDS OF REVIEW
    [1] In reviewing a criminal conviction for a sufficiency of
    the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same:
    An appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, or reweigh the evidence;
    such matters are for the finder of fact. The relevant question
    for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt. State v. McCurry, ante p. 40, 
    891 N.W.2d 663
    (2017).
    [2,3] We will not disturb a sentence imposed within the
    statutory limits absent an abuse of discretion by the trial
    court. State v. Draper, 
    295 Neb. 88
    , 
    886 N.W.2d 266
    (2016).
    An abuse of discretion occurs when a trial court’s decision is
    based upon reasons that are untenable or unreasonable or if
    its action is clearly against justice or conscience, reason, and
    evidence. 
    Id. ANALYSIS The
    Evidence Was Sufficient:
    Exploitation of a
    Vulnerable Adult.
    Dehning contends that the evidence failed to show that
    Cora Bell was a “vulnerable adult” and that therefore, his con-
    viction of count I, exploitation of a vulnerable adult, should be
    vacated. We do not agree.
    Dehning was convicted under Neb. Rev. Stat. § 28-386
    (Cum. Supp. 2012), which states in subsection (1):
    A person commits knowing and intentional abuse, neglect,
    or exploitation of a vulnerable adult or senior adult if he
    or she through a knowing and intentional act causes or
    permits a vulnerable adult or senior adult to be:
    (a) Physically injured;
    (b) Unreasonably confined;
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    (c) Sexually abused;
    (d) Exploited;
    (e) Cruelly punished;
    (f) Neglected; or
    (g) Sexually exploited.
    Neb. Rev. Stat. § 28-371 (Reissue 2008) defines a “[v]ulnerable
    adult” as “any person eighteen years of age or older who has
    a substantial mental or functional impairment or for whom a
    guardian or conservator has been appointed under the Nebraska
    Probate Code.” “Substantial mental impairment” is defined as
    “a substantial disorder of thought, mood, perception, orienta-
    tion, or memory that grossly impairs judgment, behavior, or
    ability to live independently or provide self-care as revealed by
    observation, diagnosis, investigation, or evaluation.” Neb. Rev.
    Stat. § 28-369 (Reissue 2016).
    Dehning focuses on the timeframe alleged in the infor-
    mation, January 1, 2011, to December 31, 2013. He essen-
    tially asserts that because Cora Bell lived independently until
    December 2012, she was not vulnerable for at least some of the
    time period charged.
    In an appeal of a criminal conviction, we review the evi-
    dence in a light most favorable to the prosecution. See State
    v. 
    McCurry, supra
    . There was testimonial evidence that Cora
    Bell had “mind problem[s]” and difficulty taking medication
    in 2007, that she suffered from confusion in 2009, and that
    Dehning was made Cora Bell’s power of attorney in February
    2011 because of her impairment. Regier diagnosed Cora Bell
    with Alzheimer’s disease in December 2011.
    Taken together, the evidence shows that Cora Bell was
    not merely experiencing undifferentiated aging. See State
    v. Rakosnik, 
    22 Neb. Ct. App. 194
    , 
    849 N.W.2d 538
    (2014)
    (affirming convictions where evidence established elements of
    exploitation of vulnerable adult). Compare State v. Stubbs, 
    252 Neb. 420
    , 
    562 N.W.2d 547
    (1997) (reversing conviction where
    evidence showed natural aging). Consistent with § 28-369
    quoted above, proof that an individual suffers “[s]ubstantial
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    mental impairment” can consist of observations of the adult’s
    behavior, and we do not read the statute to require expert
    opinion. In this case, numerous witnesses testified as to their
    observations of Cora Bell’s mental impairment. A rational trier
    of fact could have found beyond a reasonable doubt that Cora
    Bell’s condition met the criteria of “vulnerable adult” under
    the statute, and thus, the elements of the crime during the
    period alleged were established. See State v. McCurry, ante p.
    40, 
    891 N.W.2d 663
    (2017). We reject Dehning’s assignment
    of error.
    The Evidence Was Sufficient:
    Theft by Unlawful Taking.
    Dehning contends that because he testified that Cora Bell
    gave him consent for the challenged transactions, the prosecu-
    tion failed to establish the elements of the crime of theft by
    unlawful taking beyond a reasonable doubt. Dehning’s argu-
    ment rests on our acceptance that Dehning’s testimony was
    credible, but this argument contradicts our standard of review.
    In reviewing a sufficiency of the evidence claim, we do not
    pass on the credibility of witnesses—that is for the trier of fact.
    The relevant question for an appellate court is whether, after
    viewing the evidence in the light most favorable to the pros-
    ecution, any rational trier of fact could have found the essen-
    tial elements of the crime beyond a reasonable doubt. State v.
    
    McCurry, supra
    . We reject Dehning’s argument.
    Dehning was convicted of count II, violating Neb. Rev. Stat.
    § 28-511(2) (Reissue 2016), which states: “A person is guilty
    of theft if he or she transfers immovable property of another
    or any interest therein with the intent to benefit himself or her-
    self or another not entitled thereto.” The theory of Dehning’s
    defense and his argument on appeal are that because he offered
    evidence as quoted above in our “Statement of Facts” to the
    effect that Cora Bell had given him consent to use her property,
    he did not have the requisite intent to benefit himself with-
    out entitlement.
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    This court has stated that consent is a valid defense to theft
    by taking under the related subsection, § 28-511(1), regard-
    ing movable property, and we logically recognize consent as
    a defense under § 28-511(2) at issue in this case. See State
    v. Fahlk, 
    246 Neb. 834
    , 
    524 N.W.2d 39
    (1994), overruled
    on other grounds, State v. Stolen, 
    276 Neb. 548
    , 
    755 N.W.2d 596
    (2008). However, although Dehning claimed in his testi-
    mony that Cora Bell consented to the challenged transctions,
    the jury as trier of fact was free to find Dehning’s testimony
    incredible and reject Dehning’s defense where the prosecution
    by its evidence carried its burden of proving the elements of
    theft by unlawful taking under § 28-511(2) beyond a reason-
    able doubt. The record demonstrates that the prosecution met
    its burden.
    As recited in our “Statement of Facts,” not repeated here,
    there was legally sufficient evidence to support this conviction.
    Such evidence included that the rental income from Cora Bell’s
    house in Sidney was rarely deposited to her accounts, Dehning
    made transfers between accounts but withdrew cash in the
    exchange, and Dehning used Cora Bell’s money to buy items
    for his benefit, including guns and computers. The trier of fact
    could reasonably conclude that such takings were done with
    intent to benefit Dehning without Cora Bell’s consent. And a
    defendant can be guilty of theft by unlawful taking, even if the
    defendant holds power of attorney. See State v. Rakosnik, 
    22 Neb. Ct. App. 194
    , 
    849 N.W.2d 538
    (2014). We reject this assign-
    ment of error.
    The Sentences Were Not Excessive.
    Dehning claims that the district court erred in imposing
    excessive sentences and failing to sentence him to probation.
    We find no merit to this assignment of error.
    [4,5] We have stated that when imposing a sentence, the
    sentencing court should customarily consider the defendant’s
    (1) age, (2) mentality, (3) education and experience, (4) social
    and cultural background, (5) past criminal record or record
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    of law-abiding conduct, and (6) motivation for the offense,
    as well as (7) the nature of the offense and (8) the violence
    involved in the commission of the offense. However, the sen-
    tencing court is not limited to any mathematically applied set
    of factors. State v. Artis, ante p. 172, ___ N.W.2d ___ (2017).
    The appropriateness of a sentence is necessarily a subjective
    judgment and includes the sentencing judge’s observation of
    the defendant’s demeanor and attitude and all the facts and
    circumstances surrounding the defendant’s life. 
    Id. Dehning claims
    that his prior criminal history is minimal
    and that probation would be a more appropriate sentence,
    because it would permit Dehning to regain employment and
    pay restitution to Cora Bell. He was sentenced to 60 to 60
    months in prison for count I, exploitation of a vulnerable adult,
    and 5 to 10 years in prison for count II, theft by unlawful
    taking. Dehning does not assert that the sentences exceed the
    statutory limitations. We determine that the court did not abuse
    its discretion in sentencing Dehning as it did.
    We have reviewed the explanations given by the sentencing
    court and find them to be consistent with controlling statutes
    and not an abuse of discretion. In denying probation, the court
    stated at the sentencing hearing that
    a lesser sentence than imprisonment would depreciate
    from the seriousness of your offense or promote a disre-
    spect for the law. . . . [T]here is a need for . . . correc-
    tional service or an institutionalization . . . and the . . .
    court finds that there is a substantial risk that you would
    engage in additional criminal conduct if you were placed
    on a period of probation.
    With respect to Dehning’s demeanor and the nature of the
    offenses, the court stated that
    I was present for the entirety of your trial . . . . I listened
    to the evidence, I listened to your testimony at the time of
    the trial and the jury reached a verdict that they reached.
    The issue among others for me in this particular case is
    what I think is the callousness with which you spent the
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    resources that your mother and your father had worked
    hard their entire lives to generate . . . I found your testi-
    mony at the time of the trial to be completely incredible
    which means that I didn’t believe it.
    The record includes a presentence investigation report and
    an update thereto. These show that Dehning’s prior crimi-
    nal history includes the following: a conviction of terroristic
    threats in 1980 with 3 years’ probation; a conviction for dis-
    turbing the peace in 1986; a conviction for cruelly mistreating
    an animal in 2004; a speeding ticket in 2004; and convictions
    in Keith County in 2014 for second degree assault, third
    degree domestic assault, tampering with a witness, and viola-
    tion of a protection order, for which Dehning was sentenced
    to prison.
    Given the facts and the court’s proper considerations, the
    court did not abuse its discretion when it imposed the sentences
    recited above. We find no merit to this assignment of error.
    CONCLUSION
    Dehning was convicted of exploitation of a vulnerable
    adult and theft by unlawful taking. The evidence was suffi-
    cient, and we affirm these convictions. The court’s sentences
    were not an abuse of discretion. We affirm the convictions
    and sentences.
    A ffirmed.