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State v. Dehning

Supreme Court of Nebraska

April 27, 2017

State of Nebraska, appellee,
v.
Eddie H. Dehning, appellant.

         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 elements 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 discretion 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 unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         4. Sentences. 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 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 defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         [296 Neb. 538] 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, Kelch, and Funke, JJ.

          Miller-Lerman, J.

         NATURE OF CASE

         Eddie H. Dehning, the appellant, was charged with exploitation 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 unlawful 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 [296 Neb. 539] 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 facility 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 testified 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 suffering 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 [296 Neb. 540] 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 medications 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 evidence 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 [296 Neb. 541] records for the time that Dehning had been her power of attorney. Remington testified that in examining the bank records, he noticed a debit card was frequently used, but that ...


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